Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Application for recusal - private communication between Associate and legal representative for applicant - apprehended bias - three-step test in Ebner v Official Trustee in Bankruptcy not satisfied - no question of principle - recusal application dismissed.

1. On 20 August 2020, Regional Express Holdings Ltd (REX) filed a Form F1 (Recusal Application) with the Fair Work Commission (Commission).[1] By way of that Application, REX seeks an order that I recuse myself from further dealing with Mr Stephen Hanson's anti-bullying application (Bullying Application) (made pursuant to s.789FC of the Fair Work Act 2009 (Act).

[2] REX's Recusal Application relies upon 'apprehended', not 'actual' bias.

[3] I accept the concession by REX as to the absence of actual bias.

[4] In making its Recusal Application, REX has sought to challenge, or put in issue, a number of long standing and fundamental principles concerning the law of apprehended bias. It follows that many of REX's arguments as to the law are fallacious. Not only has REX's approach made this decision significantly longer than it would otherwise have been, but it also means that it might be easy for a reader to get lost in the detail of REX's submissions, and the detail of these reasons. In an effort to militate against this, I have organised my reasons under a number of headings.

[5] REX's contentions as to apprehended bias primarily centre upon the assertion that, in the facts and circumstances of this case, an ex parte telephone conversation between my Associate and Mr Hanson's lawyer might cause a fair-minded and informed lay observer to reasonably apprehend that I might not bring an impartial mind to the determination of these proceedings. I have rejected this assertion, along with other related assertions by REX as to apprehended bias. My reasons for those conclusions, and my determination to dismiss REX's Recusal Application, are set out following.

1. On 20 August 2020, I issued directions to REX and Mr Hanson to file submissions and evidence in respect of the Recusal Application. A hearing was held on 27 October 2020 in Sydney. Mr D Mahendra (of counsel), instructed by Mr D Trindade of Clayton Utz lawyers, appeared with permission for REX. Ms L Saunders (of counsel), instructed by Mr S Morgan, lawyer, of the Australian Licensed Aircraft Engineers Association (ALAEA), appeared with permission for Mr Hanson.[2]

[7] The Bullying Application was heard together with the ALAEA's application to resolve a dispute (Dispute Application) under the Regional Express Aircraft Engineers Agreement 2018-2021 (Agreement).

1. I issued my decision dismissing the Dispute Application on 29 July 2020 in The Australian Licensed Aircraft Engineers' Association v Regional Express Holdings.[3]

[9] Whilst the Dispute Application concerned the construction of the Agreement, the core aspect of the dispute was whether certain actions taken by REX against Mr Hanson were "disciplinary". If a finding was made that such actions were disciplinary, the ALAEA asserted that in the events that have happened, REX acted contrary to the terms of clause 35 of the Agreement. My ultimate findings, leading to the dismissal of the Dispute Application, were:

"[21] Despite the real concerns of the ALAEA and Mr Hanson as to the terms of the File Note having been intentionally drafted by REX so as to cast Mr Hanson in an unfavourable light, REX's unequivocal statement that the File Note does not equate to or impose disciplinary action means that the File Note cannot be used as reference point or foundation for future decisions by REX as to disciplinary action against Mr Hanson, and/or the termination of his employment.

[22] The manner in which the Investigation has been conducted, and the contents of the File Note, are to be considered as part of Mr Hanson's separate bullying at work claim against REX (and other individually named respondents) under Part 6-4B of the Act. Whether the suspension of Mr Hanson's company certification authority is indeed a requisite (and reasonable) response by REX to its operational and regulatory obligations will also be considered as part of Mr Hanson's bullying at work claim".[4]

[10] Neither party has sought to appeal my decision in the Dispute Application.

[11] Ms Saunders summarises the Mr Hanson's Bullying Application as follows:

"In short, Mr Hanson contends that he has been, and absent the Commission's intervention is likely to continue to be, subjected to a course of conduct by a group of individuals which:

a. was inconsistent with Rex's legal obligations under both the [applicable enterprise] Agreement and the Civil Aviation Act 1988 (Cth);

c. created a risk to health and safety, both by generating a hostile work environment and by its chilling effect on making safety reports;

d. in fact resulted in him suffering a psychological injury; and

e. for these reasons, constituted him being 'bullied at work' within the meaning of s.789FD,

and that orders should be made under s.789FF stopping this from recurring".[5]

1. A central aspect of Mr Hanson's Bullying Application are his assertions that he has been targeted for being involved in and/or reporting safety concerns in respect of REX aircraft. He says that such targeting constitutes bullying within the meaning of the Act, not least because it is contrary to Civil Aviation Safety Authority (CASA) principles that require aviation operators not to punish people for actions, omissions or decisions that they make or take in respect of safety matters, other than in circumstances where such actions, omissions or decisions constitute gross negligence, recklessness, wilful violations or destructive acts (Just Culture).[6]

[13] As I understand it, and by way of summary, the goal of a Just Culture is to avoid a culture in which safety issues are not reported, or under-reported, because people are punished for their involvement in, or reporting of, such safety issues. If such a culture were allowed to develop unaddressed, then it may well lead to an increased risk to aviation safety, aviation employees, and the general flying public.

[14] According to Mr Hanson, whilst REX may say that it has only placed "file notes" on his personnel file regarding various safety incidents, these file notes need to be considered in light of all the events that have happened (including by reference to the conduct of the individually named respondents). In other words, although it might be said that the file notes represent innocuous outcomes of the various investigations conducted by REX, the events leading up to the issuing of the file notes, and the wording and conclusions set out in the file notes, give rise to the very kind of bullying behaviour (creating a 'risk' to Mr Hanson's health and safety), that ought enliven the Commission's intervention under the Act. This is especially so given that the file notes placed on Mr Hanson's personnel file are being used (at least in part) by REX as a reason to justify REX's continued refusal to reinstate authorisations required by Mr Hanson to perform his role as a Licensed Aircraft Maintenance Engineer (concerning his ability to taxi and certify aircraft), and the removal of monetary allowances or payments that attach to such authorisations.

[15] By way of context and summary, and without making any specific findings for the purposes of this Recusal Application, and without attributing any specific conduct to any of the named individual respondents, the Bullying Application concerns four incidents:

(i) First Incident: On 3 July 2017, Mr Hanson was taxiing an aircraft (REX SAAB 340, registration VH-ZLA) from the tarmac (F15B) to a REX maintenance hangar. It was at this time that the left wing-tip of the aircraft struck an open industrial skip-bin lid, causing damage to the wing tip's strobe-light lens cover. Shortly after the First Incident, it was found that the line markings between the taxi line and the "no storage or parking zone" (where the skip bin was positioned) were incorrectly marked on the tarmac as to wing clearance. Corrective action was taken to remark these lines, and the location where the skip bin was being stored (at the time of the incident) was re-marked as a permanent "no storage" zone. Mr Hanson asserts that despite various countervailing matters giving rise to the First Incident - including incorrect line markings on the tarmac, and the poor positioning of the skip bin by a waste contractor - REX seeks to hold Mr Hanson responsible for the collision, and punish him (including by refusing to reinstate his aircraft taxiing authorisation). Further, the manner in which REX approached the investigation of the First Incident, in the events and delays that have happened, can hardly be said to be reasonable management action. Indeed, Mr Hanson says that even if the investigation process and its outcomes in relation to the First Incident might arguably be said to have constituted reasonable management action (which Mr Hanson says do not), at the very least, such management action was unnecessarily drawn out and, inter alia, has not been conducted in a reasonable manner.

(ii) Second Incident: On 27 October 2018, Mr Hanson attended upon an aircraft in respect of a REX Aircraft Maintenance Log (AML) Report. That AML Report was completed by a pilot, who stated "dust cover from first officer's control column missing" (Dust Cover AML). The Dust Cover AML had been "deferred" by REX engineering (meaning it was non-safety critical, and could be rectified at a later date). However, upon subsequently attending the aircraft and inspecting the identified "dust cover", Mr Hanson saw that the dust cover was not missing. Upon further inspection, Mr Hanson identified that the "dust boot" to the pilot's steering column was defective and needed to be replaced. Mr Hanson assumed that the pilot was wrongly referring to the "dust boot" and not the "dust cover", and that the pilot meant to state in the Dust Cover AML that the dust boot was damaged and required replacement. Not content to merely rely upon his own 'assumption', Mr Hanson reported the discrepancy to his supervisor, who advised him to replace the defective dust boot. It was later identified via a CASA audit that the missing or defective part was not the dust cover or the dust boot, but a missing dust plug on the aircraft steering column that prevents dust from entering the steering column. Mr Hanson asserts that despite the Dust Cover AML (completed by the pilot) specifying the wrong missing part, and despite clarifying the matter with his supervisor at the time, REX has unreasonably held him responsible for the error, and engaged in an investigation process that has not been conducted in a reasonable manner.

(iii) Third Incident: Early in the morning (pre-dawn) on 10 April 2019, Mr Hanson was performing a Line Check 1 (LC1) inspection on a REX aircraft that was scheduled to depart with passengers that morning. Whilst completing the LC1 inspection, Mr Hanson noticed what he considered to be metal corrosion (i.e. rust) on the aircraft's propeller shaft. Mr Hanson reported the corrosion on the propeller shaft to REX engineering, who determined to remove the aircraft from scheduled passenger services that day (and use a replacement aircraft instead). Remedial action via clad plating to the propeller shaft occurred prior to it being put back into service. Mr Hanson asserts that after he reported the suspected corrosion on the propeller shaft, he was subjected to an investigation that was conducted in an unreasonable manner, and unreasonable management action was taken against him. In short, Mr Hanson says that he has been punished by REX for noticing and/or reporting what he perceived to be a corroded propeller shaft, including via the removal of his authorisations to certify REX aircraft. He highlights that his concerns as to the corrosion on the propeller shaft were not other than genuine safety concerns, and identifies that his concerns were all the more compounded having regard to his awareness of another REX aircraft that lost its propeller shaft whilst in flight over Sydney. He also notes that remedial action to the propeller shaft occurred prior to the aircraft being placed back into active passenger service, meaning that his concerns over the corroded propeller shaft were hardly unfounded.

(iv) Fourth Incident: On 30 June 2019 REX went public in relation to its dispute with Mr Hanson, and issued a media release, naming Mr Hanson as a "disgruntled engineer" who has been raising "wild" and "baseless" accusations, "first with the Fair Work Commission and then to [CASA]". The media release was subsequently redacted to remove only Mr Hanson's name, and reissued in the same terms. Mr Lim Kim Hai (REX Executive Chairman) described the original media release naming Mr Hanson as a "COMPLETE DISASTER" (uppercase in email from Mr Lim).[7] Mr Hanson says that even with his name removed from the media release, it was readily apparent to his work colleagues that the revised REX media release was referring to him. Mr Hanson says this incident is a further example of the repeated and vindictive bullying behaviour that has been taken against him by REX.

1. I note that REX defends the Bullying Application. In summary, REX argues that the named individual respondents have not bullied Mr Hanson, and/or that any action taken against Mr Hanson in relation to the first three incidents has been reasonable management action carried out in a reasonable manner.[8] In relation to the Fourth Incident, REX says that as none of the individual named respondents was responsible for the media release, in that it was issued by an employee of REX who is not a party to the Bullying Application, no claim of bullying arises (and/or no relief can be granted) in respect of same. In mounting its defence, REX does not dispute that if bullying has occurred, it would give rise to a risk to Mr Hanson's health and safety.[9]

Factual overview of events leading to REX's Recusal Application

[17] On Friday, 14 August 2020, at my direction, my Associate contacted Mr Hanson's lawyer (Mr Morgan) by telephone. Given that I was soon to publish my decision in the Bullying Application, I directed my Associate to inquire with the legal representatives of each party as to Mr Hanson's current employment status, and whether he remained off work on Workers' Compensation (Status Inquiry).

[18] In his witness statement tendered at the hearing of the Bullying Application, Mr Hanson gave the following unchallenged evidence:

"All of this [alleged bullying] has become way too much for me and I am now off work on workers' compensation. Attached to this statement and marked "SH-26-1" through to "SH-26-3" are copies of my Workers Compensation Certificates of Capacity.

I need to go back to work, but I need protection. I do not have a choice to go anywhere else. Firstly, I only have a licence to work on REX aircraft, and therefore if [I] could go anywhere else I would have to drop back to being a Aircraft Maintenance Engineer (AME) as opposed to a LAME [Licensed Aircraft Maintenance Engineer]. This would probably result in a $30,000 pay-cut. Secondly, the industry is very small and my name is out there as a result of REX identifying me. I know it will be very hard to get another job".[10]

[19] On the question of how Mr Hanson's injury arises from his work (and the bullying he alleges to have been subject to at the REX workplace), Mr Hanson's Workers' Compensation Certificate of Capacity dated 5 July 2019 (as tendered without objection at the hearing of the Bullying Application) reads:

"Psychological injury from bullying and harassment by management and HR over a prolonged period. Feels targeted, intimidated and threatened by management. His role requires him to certify aircraft, but he gets in trouble when he raises safety concerns".[11]

[20] Given the time between that evidence, and the time I proposed to issue my decision in the Bullying Application, I considered Mr Hanson's employment status immediately prior to my decision being issued an important matter to clarify and otherwise be updated upon. Indeed, if Mr Hanson was no longer employed by REX, or had been medically certified as being permanently unfit for work at REX, or on permanent restrictions, this would give rise to issues concerning the utility of any findings to be made in the proceedings, and/or any recommendations or orders as to ultimate relief (if any).

1. It is not in contest that the clarification sought pursuant to the Status Inquiry essentially only relates to issues in the proceedings concerning relief (i.e. not questions of liability).[12] This is especially so given that REX did not raise any issue (including any jurisdictional issue) in the proceedings concerning Mr Hanson's assertion that the alleged bullying behaviour (if proven) created a "risk" to his health and safety.[13]

[22] Sometime on Friday, 14 August 2020, my Associate verbally advised me that he had contacted Mr Hanson's lawyer about the Status Inquiry by telephone, and that Mr Hanson's lawyer had stated that his "understanding" was that Mr Hanson:

[23] At this time, my Associate also advised me that Mr Hanson's lawyer prefaced the foregoing answer by stating that he would need to double check on this understanding, and would confirm the position after making further relevant inquiries. I understood from this that Mr Hanson's lawyer's response to the Status Inquiry required further and subsequent confirmation by him.

[24] On Tuesday, 18 August 2020 at 2:02pm AEST, Mr Hanson's lawyer sent the following email to my Chambers, copying in REX's lawyer (Mr Trindade):

As per our discussion last week (on 14 August 2020) in response to the Deputy President's enquiries:

1. Mr Hanson only holds licences to certify REX aircraft and therefore Mr Hanson has to, and wants to, return to REX in order to resume his career as a LAME (i.e. Mr Hanson will not be able to work for another maintenance organisation as a LAME); and

2. It is my understanding that Mr Hanson is still presently receiving weekly payments of workers compensation, and that Mr Hanson's nominated treating doctor will not certify Mr Hanson as fit to return to work unless he has the protection of bullying orders.

The respondent's legal representative is copied into this correspondence".

(hereinafter, Lawyer Disclosure)[14]

[25] My Associate forwarded me the Lawyer Disclosure at 2.03pm AEST on Tuesday, 18 August 2020. I have no recollection of when I read this email. The electronic properties to the email appear to indicate that I 'read' the Lawyer Disclosure at 4.02pm AEST on 18 August 2020. That said, I do not proclaim to be a computer expert.

[26] I equally have no independent recollection of what was occupying my time on 18 August 2020. Having gone back and reviewed my diary and email interactions on 18 August 2020, such records indicate that five unfair dismissals were being heard together by me that day (i.e. five employees dismissed by the one employer). That hearing turned into a Commission assisted conciliation, to which I was actively involved in until around 2.00pm AEST (when the matters collectively settled). I received 29 emails on 18 August 2020. It was necessary for me to respond to six of them. The emails received and responded to by me concerned the approval of two enterprise agreements, the finalisation of an enterprise agreement decision, the drafting of an unfair dismissal decision, a request for amended directions in two matters, and case law I provided to my Associate to assist him in drafting a research memorandum for me on a point of law. The short point is that even putting aside the electronic properties as to when I read the Lawyer Disclosure, it appears that I was somewhat occupied all day on 18 August 2020.

[27] Later on 18 August 2020, at 3:43pm AEST, my Associate sent the following email to Mr Hanson's lawyer, copying in REX's lawyer:

1. The foregoing email was not sent by my Associate on my instructions. As I pointed out during the hearing on 27 October 2020, I am aware that my Associate regularly responds to emails he receives to the Chambers email Inbox with a polite acknowledgement of receipt, and does so as a matter of courtesy and professionalism. Such acknowledgement equally serves to ensure that anxious parties are aware that their email communication has been received, alleviating them of the need to chase up my Associate with further emails containing queries such as "Did you get my email?".[15]

[29] On Wednesday, 19 August 2020 at 10:22am AEST, by way of email attachment, REX's lawyer sent my Chambers a letter, which reads:

It has come to the Respondents' attention that after judgment being reserved on 18 February 2020 the following has occurred:

1. On 14 August 2020 your Associate contacted the Applicant's Representative (Mr Morgan of the ALAEA) seeking information on your Honour's behalf.

2. Mr Morgan provided information to your Associate, which was then presumably communicated to your Honour.

3. None of the Respondents, nor us as the Respondent's Representative were party to, or aware of those communications or of any information being passed to the Commission in those communications.

4. Neither your Honour nor your Associate advised the Respondents that private communications with the Applicant had occurred.

5. At 2:02 pm on 18 August 2020 we received a copy of an email from Mr Morgan to your Associate confirming that communications had occurred on 14 August 2020 in response to enquiries from your Honour.

6. At 3:43 pm on 18 August 202 your Associate replied to Mr Morgan by email (copied to us) noting Mr Morgan's email.

Private communications between a member of the Commission (or his or her Chambers) and a party to a proceeding, in respect of the proceeding, should not occur. This is even more so the case when this occurs after judgment has been reserved and where the communication is initiated by the Commission.

The communications between your Associate (on your behalf) and Mr Morgan give rise to a reasonable apprehension of bias of the kind identified by the High Court in Re JRL; Ex parte CJL [1986] HCA 39. Accordingly, the Respondents respectfully request that your Honour recuse yourself from further hearing or determining the matter and refer the matter to the President of the Fair Work Commission for allocation to another member of the Commission. The Respondents consider that your Honour's recusal is necessary and appropriate to ensure that, as put by Chief Justice Barwick in Re JRL (at para [11]):

"justice must not only be done but must manifestly be seen to be done; when a judge has received private representations concerning a case, the court will not inquire whether the representations in fact worked to the prejudice of the party against whose interests they were made - it is enough that they might do so".

[30] I observe that the Clatz Letter makes no inquiry, and seeks no clarification, of me or my Chambers as to the circumstances surrounding the Lawyer Disclosure. Further, it does not suggest that there be any opportunity for Mr Hanson to have any say as to my recusal, or that a hearing need occur prior to me making my determination as to recusal. Rather, the Clatz Letter simply asserts that my recusal is not only appropriate, but "necessary".

[31] At 12:09pm AEST on Wednesday, 19 August 2020, by way of email, my Associate replied to the Clatz Letter on my behalf as follows:

Your correspondence to the Deputy President of today's date is noted.

Should the Respondent wish to press its claim for recusal, it should do so by way of formal application (i.e. by filing a Form F1). It is noted that judgement in the substantive proceedings is imminent.

Alternatively, having regard to what follows, the Respondent is invited to respond to the contents of Mr Morgan's email of 18 August 2020 (should it wish to do so).

By way of disclosure, the Deputy President notes as follows:

1. On or about 14 August 2020, in preparing his written reasons for decision in this matter, the Deputy President considered it appropriate to inquire of the parties as to the current employment status of Mr Hanson. He initially instructed his Associate to contact the ALAEA by telephone to inquire "only" as to the current employment status of Mr Hanson. The Deputy President's Associate contacted Mr Morgan of the ALAEA by telephone in respect of this inquiry. The contents of Mr Morgan's email reply of 18 August 2020 go beyond the communication that was had over the telephone, albeit they reflect Mr Morgan's response (during the discussion with the Associate), being that his understanding was that the Applicant remains employed by the Respondent, but also remains off work on Workers' Compensation. At the conclusion of the conversation, Mr Morgan stated to the Deputy President's Associate that he wished to seek instructions so as to confirm his understanding of Mr Hanson's employment status. Mr Morgan's understanding, and his desire to obtain instructions as to that understanding, was the only information passed onto the Deputy President.

2. Prior to your correspondence of today, it was the Deputy President's intention to also have his Associate contact the Respondent's legal representatives to clarify its position as to Mr Hanson's employment status prior to any judgement being delivered. That was to occur after Mr Morgan had clarified his understanding of Mr Hanson's employment status, which Mr Morgan did by way of email yesterday.

3. Upon reflection, the Deputy President readily concedes that the inquiry made would have been more appropriately (and properly) done by simply emailing both parties. The Deputy President apologies for any concern caused as a result of his approach to the making of the inquiry.

4. Absolutely no other communications with any person about this matter have occurred since judgement was reserved (by the Deputy President, his Associate, or anyone on his behalf).

Your correspondence appears to take the position that the communication between the Deputy President's Associate and Mr Morgan is a black and white case of apprehended bias, giving rise to a "necessity" for the Deputy President to immediately disqualify himself from the proceedings. That is not the legal position, and is a selective gloss on the case quoted. Indeed, it is a gloss on all case law concerning recusal for apprehended bias. In this regard, the Deputy President notes the statement of Justice Mason in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 ("Re JL") (at 351):

"As McInerney J. pointed out, the receipt by a judge of a private communication seeking to influence the outcome of litigation before him places the integrity of the judicial process at risk. A failure to disclose that communication will seriously compromise the integrity of that process. On the other hand, although the terms of a subsequent disclosure by the judge of the communication and a statement of its effect in some, perhaps many, situations will be sufficient to dispel any reasonable apprehension that he might be influenced improperly in some way or other, subsequent disclosure will not always have this result. The circumstances of each case are all important. They will include the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge".

The Deputy President further points out that the concerns you raise in this matter are in no way comparable with the factual circumstances in Re JL.

The Deputy President will not be referring this matter to the President. As you ought be aware, the President does not have authority to interfere with the decisions of other Members, including procedural decisions, except in properly constituted appeal proceedings. Under s.582(3) of the Fair Work Act 2009, Commission Members are not subject to direction from the President or anyone else about decisions they make in matters allocated to them".

[32] I observe that I state in the Commission Disclosure that the contents of the Lawyer Disclosure:

(a) "go beyond the communication that was had over the telephone, albeit they reflect Mr Morgan's response (during the discussion with the Associate), being that his understanding was that the Applicant [Mr Hanson} remains employed by the Respondent, but also remains off on Workers' Compensation";

(b) "[Mr Hanson's lawyers] understanding, and his desire to obtain instructions as to that understanding, was the only information passed onto the Deputy President"; and

(c) that I instructed my Associate to make an inquiry of the ALAEA "only as to the current employment status of Mr Hanson".

[33] Despite not challenging the Commission Disclosure, or making any further inquiries of me about it, REX seeks to rely upon what is said in (a) to argue either a gap in the Commission Disclosure, or an inconsistency in the Commission Disclosure, or an inconsistency between the Lawyer Disclosure and the Commission Disclosure. I reject the argument, and the inconsistent formulation of the words of the Commission Disclosure as asserted by REX.

[34] Items (a), (b) and (c) must be read together, and the Commission Disclosure must be read as a whole. The only information passed onto me by my Associate as to his conversation with Mr Morgan on 14 August 2020 was as set out in (b). This is consistent with my statement in (a) that, to my knowledge, the Lawyer Disclosure goes beyond what was discussed with my Associate. It is also consistent with the limited inquiry I directed my Associate to make in (c). I say more about REX's assertions as to inconsistency, and its unsuccessful attempt to ground its Recusal Application upon same, later in this decision.

[35] At 4:50pm AEST on Wednesday, 19 August 2020, REX's lawyer wrote to my Chambers, putting the Commission on notice that the Respondents intended to file a Form F1 (containing a formal application for recusal). I repeat that at no time prior to or after filing the Form F1 has REX sought to clarify with me, or obtain further particulars concerning, the contents of the Commission Disclosure.

[36] On Thursday, 20 August 2020 at 12:04pm AEST, my Associate sent an email on my behalf, directing REX to confirm by way of return email that Mr Hanson's current employment status is that he remains employed by REX, but is otherwise off work on worker's compensation (Direction To Reply). That email reads:

By 12:00pm AEST (midday) on Friday, 21 August 2020, the Deputy President requests that

the Respondent confirms that the Applicant's employment status is that he remains employed by REX (but is otherwise on worker's compensation)".

[37] At 1.20pm AEST on Thursday, 20 August 2020, REX filed a Form F1 seeking my recusal.

[38] On Friday, 21 August 2020 at 10:18am AEST, and in respect of the Direction to Reply, REX's lawyer wrote to my Chambers as follows:

Given that the Respondents have made application that the Deputy President recuse himself, we consider that the appropriate course would be to stay this direction until the recusal application is heard and determined. Accordingly we request that the direction be stayed.

We would be grateful if you could bring this request to the Deputy President's attention".

[39] Later that same day at 10:56am AEST, my Associate replied to REX's lawyer on my behalf as follows:

"The Deputy President advises that the direction will not be stayed.

The Deputy President expects that the Respondent will comply with the direction as put in my email of 20 August 2020".

[40] Later that same day at 11:45am AEST, REX's lawyer wrote to my Chambers as follows:

As directed, the Respondent (Regional Express Holding Ltd) confirms that "the Applicant's current employment status is that he remains employed by REX, but is otherwise on worker's compensation."

Please note that in circumstances where an application for recusal has been made and a stay of the direction has been sought and refused, the compliance of the Respondent with the direction from the Deputy President does constitute an acceptance of, or consent to, the Deputy President continuing to hear and determine the proceeding and the Respondent maintains its application for recusal".

[41] I note that REX's lawyer shortly followed this correspondence with the following clarification:

I apologise for the error in the below email - the word "not" was missing from the third paragraph which should read:

Please note that in circumstances where an application for recusal has been made and a stay of the direction has been sought and refused, the compliance of the Respondent with the direction from the Deputy President does not constitute an acceptance of, or consent to, the Deputy President continuing to hear and determine the proceeding and the Respondent maintains its application for recusal".

[42] I observe that whilst REX's lawyer advises that the foregoing response is without prejudice to REX's position that I recuse myself, he confirms (on behalf of REX), as a matter of fact, that Mr Hanson's employment status is broadly consistent with that stated by Mr Hanson's lawyer in the Lawyer Disclosure (i.e. Mr Hanson remains employed by REX, and remains on worker's compensation).

The role of Mr Hanson in these recusal proceedings

[43] The Clatz Letter states that my recusal is "necessary". It asks that I immediately recuse myself and refer the matter to the President for reallocation to another member of the Commission. In doing so, the Clatz Letter asserts that my determination as to recusal should be made by me absent any input from Mr Hanson. That said, during the hearing, REX's counsel sought to recalibrate the REX position by falling back to the trite proposition that it is a matter for the Commission as to how its proceedings are conducted:

"THE DEPUTY PRESIDENT: I mean I'm reading this [the Clatz Letter] as an application. You put it as high as an actual application for recusal.

MR MAHENDRA: There doesn't have to be an application for you to recuse yourself. If pure attention is drawn to the relevant facts, then it's a matter for you as to whether you recuse yourself.

THE DEPUTY PRESIDENT: Well, where's the - is there any opportunity for Mr Hanson to reply to this?

MR MAHENDRA: Mr Hanson shouldn't be taking a position on this application.

THE DEPUTY PRESIDENT: Well, he's not taking a position.

MR MAHENDRA: He is, he's opposing it. That's abundantly clear from the submissions.

THE DEPUTY PRESIDENT: No, he's entitled to put his views, isn't he, in the context of the implications of me having to recuse myself at this stage of the proceedings?

MR MAHENDRA: If you consider that to be appropriate, then certainly you've got the discretion to invite that. It's certainly not a right that a party has. A judge, on his own motion, may decide, "Okay, there's an issue here and I need to recuse myself".

THE DEPUTY PRESIDENT: So he's not entitled to have any say, it's really just up to me?

MR MAHENDRA: It is up to you. Absolutely".[17]

[44] In regard to the foregoing transcript exchange, I make the following points:

(a) REX's approach as to how the Recusal Application should be dealt with is significantly inconsistent. In this regard, firstly, in the Clatz Letter, REX requests that I immediately recuse myself in Chambers (and without further hearing). Secondly, in its written submissions, REX spends a number of paragraphs setting out the reasons why it considers an oral hearing must occur (and objects to its Recusal Application being determined without an oral hearing). Thirdly, at the hearing, REX's counsel submitted that the process to be adopted is a matter for the Commission.

(b) The fact that it is a matter for the Commission as to how it conducts proceedings before it, including pursuant to its statutory and inherent powers, is not to the point. Mr Hanson's counsel highlighted that whilst recusal proceedings are not inter parties, any determination that I recuse myself from these proceedings would have a significant effect upon Mr Hanson's case, and him personally. This is especially so where the hearing was conducted over six days, with a high degree of contested evidence, and I have already determined (and issued my reasons for decision in) the Dispute Application. Hence, Mr Hanson does not appear in the recusal proceedings in opposition to the Recusal Application, but essentially appears as a contradictor to areas of approach urged upon the Commission by REX that are fallacious and/or erroneous, and might give rise to an injustice being visited upon Mr Hanson if accepted. I wholly concur with these submissions by Mr Hanson's counsel. Indeed, in my view, it would only be in the most unusual of circumstances that a determination as to recusal would be made on the basis of assertions set out in a letter to chambers. The issues in REX's Recusal Application are not unusual. Rather, the issue of ex parte communications giving rise to apprehensions of bias are matters that have been adjudicated upon multiple times before, in courts and tribunals across Australia.

Apprehended bias is not to be accepted too readily

1. REX's approach to my recusal, as urged upon me in the Clatz Letter, is also contrary to legal authority. A decision-maker should not disqualify himself or herself without good cause, and must not reach that conclusion lightly.[18]

2. In Clenae Pty Ltd v ANZ Banking Group Ltd,[19] Callaway JA observed:

"As a general rule, it is the duty of a judicial officer to hear and determine the cases allocated to him or her by his or her head of jurisdiction. Subject to certain limited exceptions, a judge or magistrate should not accede to an unfounded disqualification application".[20]

1. In Re JRL; Ex parte CJL (Re JRL),[21] Mason J stated:

"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".[22]

1. In Johnson v Johnson (Johnson),[23] Kirby J stated:

"Such considerations lay behind the salutary warning given in Re JRL; Ex parte CJL that judicial officers in Australia were obliged to discharge their professional duties unless disqualified by law. They were told not to accede too readily to suggestions of an appearance of bias, lest parties be encouraged to seek such disqualification without justification. Applications of that kind might sometimes be made in the hope of securing an adjudicator more sympathetic to a party's cause. Or they might be made because of the strategic advantage that may thereby be secured, especially the interruption of lengthy proceedings and the delays consequent upon obtaining a fresh start in a busy court or tribunal".[24]

1. In Antoun v R,[25] Kirby J stated:

"Impartial hearings and over-ready disqualification

It is true that, in the oft-repeated words in Re JRL; Ex parte CJL, this Court has "loudly and clearly" expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose amongst the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases. It was not questioned in this appeal.

The duty to discharge judicial functions is necessarily subject to any disqualifying conduct on the part of the judge subject to a recusal submission. The observations in Re JRL are a corrective to over-ready disqualification ...".[26]

[50] From the case law extracts set out above, the short point is that claims as to recusal, in relation to bias or apprehended bias, are serious matters that require proper scrutiny, lest they become encouragement to, or grist to the mill for, the ill-informed and/or unworthy advocate. The submission by REX's counsel that I could have simply treated the Clatz Letter as the only foundation for me to "necessarily" and/or immediately recuse myself from the determination of the Bullying Application, would not only be an approach bad at law, but bad in terms of procedure and natural justice. To the extent that REX asserts otherwise, I reject the assertion.

1. In Ebner v Official Trustee in Bankruptcy (Ebner),[27] the majority of the High Court stated of the 'apprehension of bias principle':

"[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

[7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror".[28]

1. 'Impartiality' arises from a finding as to 'prejudgement', and refers to what goes on (actual bias), or appears to go on (apprehended bias), in the mind of the decision-maker. 'Independence' concerns the relationship of the decision-maker to others. Ultimately, the core principle behind both impartiality and independence is that of 'prejudgement'. Of note is the public lamentation by the Hon. Michael Kirby AC CMG[29] of the transformation in Ebner away from an assessment of "independence" as a stand-alone test for bias:

"The question arose in the decision in Clenae Pty Ltd and Ors v Australia and New Zealand Banking Group Ltd [(2000) 205 CLR 337; [2000] HCA 63]. That was one of two appeals, heard at the same time, concerned with aspects of the law of judicial recusal in Australia. They were heard by the High Court of Australia and decided in December 2000. The companion decision was Ebner v Official Trustee in Bankruptcy [(2000) [2000] HCA 63; 205 CLR 337 at 346-347; [2000] HCA 63, [13]-[16]]. In Ebner the Court unanimously dismissed an appeal from the Federal Court of Australia [Ebner v Official Trustee in Bankruptcy [1999] FCA 110; (1999) 91 FCR 353]. It affirmed the decision of that Court rejecting an obligation for recusal. However, in Clenae the Court was divided [Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J dissenting]. By majority it held that the judge in question in that case, (Mandie J, in the Supreme Court of Victoria) had not been disqualified so that his decision (and that of the Court of Appeal of Victoria affirming it [Clenae Pty Ltd v ANZ Banking Group Ltd [1999] VSCA 35; [1999] 2 VR 573]) should stand. I dissented.

In reaching their conclusion in Clenae, the majority held that there was no separate rule of automatic disqualification that applied where a judge had a direct pecuniary interest in a party to a case over which the judge was presiding. Instead of applying a principle framed in terms of the independence of the judge from the parties, Clenae held that the proper approach was to apply the 'apprehension of bias principle' to all cases of suggested recusal. Thus, the test for all cases in which it was suggested that a judge was disqualified, by reason of interest, conduct, association, extraneous information or some other circumstance, was whether the judge might not bring an impartial mind to the resolution of the question which the judge was required to decide. It was thus a test of impartiality. Not independence".[30]

How to 'apply' the principle of apprehended bias

[53] The 'principle of apprehended bias' does not exist in a vacuum (let alone an idealistic vacuum). Referring to broad statements of the principle is all well and good, but the decided cases fall within a much narrower compass. Indeed, no matter how many times one may shout out a principle from the rooftops, the actual question for determination in cases of apprehended bias is the proper 'application' of the principle. In this regard, the majority of the High Court stated in Ebner:

"[8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. 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. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed".[31]

1. When referring to the "test" to be applied based upon the foregoing passage from Ebner, and flowing from the words of the last sentence (commencing with "only then"),[32] Gageler J identified the 'application' of a three-step approach in Isbester v Knox City Council:[33]

"The first is that it is an "objective test of possibility, as distinct from probability". The second is that its application necessarily involves three analytical steps. Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way".[34]

1. In Minister for Immigration and Multicultural Affairs v Jia Legeng,[35] Hayne J set out the three-step test from Ebner in a different way (in terms of contentions):

"Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case".[36]

1. In CNY17 v Minister for Immigration and Border Protection (CNY17),[37] Kiefel CJ and Gageler J identified the application of the third step in the Ebner as critical:

"Taking those two steps is necessary to provide the foundation for the third and critical step in the application of the bias rule. That is the step of assessing whether the fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred".[38]

1. In respect of recusal applications based upon apprehended bias, the 'application' of the test in Ebner has been described as "not in doubt".[39]

The three-step test in Ebner is to be 'applied' in all cases of apprehended bias in Australia

[58] The established categories of apprehended bias giving rise to recusal (or disqualification) are broadly:

[59] REX has not identified the category or categories of apprehended bias it relies upon in advancing its Recusal Application. Despite this unhelpful lack of precision, and without seeking to discount or otherwise undermine REX's contentions, it would appear that in essence REX relies upon the following categories of apprehended bias:

(a) "conduct, either in the course of, or outside, the proceedings" (arising from the ex parte communication between my Associate and Mr Hanson's lawyer, on 14 August 2020); and "cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias" (arising from the contents of the email sent by Mr Hanson's lawyer to my Associate on 18 August 2020) (together Recusal Issue One); and

(b) "conduct, either in the course of, or outside, the proceedings" (arising from the so-called "emphatic" language used in the Commission Disclosure, including to the extent that this disclosure replies to the Clatz Letter) (Recusal Issue Two).

1. REX's case therefore falls squarely within categories of apprehended bias (i.e. conduct and extraneous information) that the High Court has repeatedly said are subject to the proper application of the three-step test laid down in Ebner. As the majority (Gummow ACJ, Hayne, Crennan and Bell JJ) of the High Court stated in Michael Wilson & Partners Limited v Nicholls:[41]

It has been established by a series of decisions of this Court (see, for example, Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Smits v Roach (2006) 227 CLR 423; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283) that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) 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. No party to the present appeal sought in this Court, or in the courts below, to challenge that this was the test to be applied.

As the plurality in Johnson v Johnson explained, '[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues'".[42]

1. More recently, in CNY17, a unanimous High Court (Kiefel CJ, Gageler, Nettle, Gordon and Adelman JJ) again approved the test in Ebner as the one to be applied in all cases of apprehended bias.[43]

2. Notwithstanding REX's counsel's submissions to the contrary,[44] I consider that I am bound to follow and properly 'apply' the three-step test set down in Ebner in making my determination in this Recusal Application (for all categories of asserted apprehended bias). Indeed, it appears to me to be without any doubt that the test under Australian law, across the board in cases of alleged apprehended bias, is the three-step test set out in Ebner. That test is essentially one of "impartiality", with the requirement for a "logical connection" to be clearly identified before any finding as to "prejudgement" can "reasonably" be assessed. Many refer to the Ebner test as the 'might' and 'might not', or double 'might', test.[45]

[63] In this case, it would be wrong at law to apply the test set down in Ebner in a manner different to that laid down by the High Court. For example, it would be wrong at law to recuse myself only because an ex parte communication is the foundation for, or conduct giving rise to, asserted apprehended bias. In other words, no matter what authorities, other than Ebner, might be submitted by REX to apply (in addition to or in substitution for the application of the test in Ebner), the principle of precedent requires that the three-step test in Ebner always be applied to determine whether there is 'prejudgement' that can "reasonably" be said to give rise to impartiality.

1. For clarity, I am not aware of there being any foundation at law to the contention that there are subclasses of the Ebner test to be applied concerning questions of apprehended bias in Australia. Nor would it be correct to assert, as REX does, that the three-step test in Ebner only applies to cases of apprehended bias "generally"[46] (howsoever one might choose to define the word 'generally').

The law of apprehended bias is all about 'prejudgement' not 'predisposition'

1. A finding as to 'actual' bias is based upon 'prejudgement' incapable of being altered by evidence or argument (i.e. not 'predisposition'). To be disqualified for actual bias it must be definitively established that a decision-maker is so committed to a particular outcome that he or she will not alter that outcome, regardless of evidence or argument presented.[47] This requires an assessment of the state of mind of the decision-maker.[48]

2. Just like actual bias, 'apprehended' bias is also directed to 'prejudgement'. In other words, the tests as to both actual and apprehended bias are not directed towards a mere 'predisposition'.[49]

3. It is equally important to note that the test as to apprehended bias depends upon whether there is a "real", rather than a "remote", "possibility" (not probability) of bias.[50] The fact that a party might have concerns that a decision will not be made in their favour has never been a ground that supports a claim as to apprehended bias.

4. In pointing out that "natural justice does not require the absence of any predisposition or inclination",[51] Gleeson CJ and Gummow J of the High Court made the point that:

"[d]ecision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion".[52]

The test in Ebner is about 'apprehended' bias, not 'suspicion' of bias

1. Apprehended bias is founded upon a 'perception', not a 'suspicion'. As the High Court stated in Livesey v New South Wales Bar Association:[53]

"Although statements of principle commonly speak of "suspicion of bias", we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning".[54]

(a) the decision of the English Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd (Locabail),[55] which identifies that a test based upon "reasonable suspicion" is something different to a test based upon an 'apprehension' of bias;[56] and

(b) the statement by Kirby J in Johnson that the fair-minded and informed lay observer is not "unduly sensitive or suspicious".[57]

'Logical connection' required for apprehended bias

1. In the case of Hot Holdings Pty Ltd v Creasy,[58] Gleeson CJ stated:

"... it is not sufficient to address the issue, at a high level of generality, by reference to ethical standards ... Nor is it sufficient to characterise the "process" as "tainted", and note that an observer who knew some of the facts, but not others, might be suspicious about what had gone on".[59]

1. Consistent with the three-step test set out in Ebner, a party applying for a decision-maker to recuse himself or herself must be able to identify a "logical connection" between the alleged apprehension of bias, and the prejudgement leading to an asserted finding as to impartiality. Bare assertions are not sufficient.[60] Asserted apprehensions of bias must be reasonable. The test is taken from the perspective of a hypothetical fair-minded and informed lay observer, and is not concerned with fanciful apprehensions of bias.[61] A party's subjective or idealistic views as to the appropriateness or ethics of particular conduct or communications are irrelevant.[62]

[73] In the absence of the key component of 'logical connection' in any claim as to apprehended bias, it will never be sufficient for one to simply assert that an absence of impartiality (or bias) exists. Indeed, just because it might be said that a decision-maker lacks independence (real or apprehended), or has a particular disposition, does not mean that they are impartial, or will otherwise be impartial. To suggest otherwise would be to totally misunderstand and misapply Ebner.

1. In Michael Wilson & Partners Ltd v Nicholls,[63] the majority (Gummow ACJ, Hayne, Crennan and Bell JJ) stated:

"... the bare assertion that the judge appeared to be biased through prejudgement would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgement and the possibility of departure from impartial decision making".[64]

1. Dr Matthew Groves,[65] of the Monash University Law Faculty, makes the following observations of the test in Ebner:

"One practical obstacle of this test is the requirement that those claiming bias must explain the 'logical connection' between the suggested source of bias and its supposed effect. A party claiming bias cannot simply point to an alleged source of bias and presume that its effect is so obvious it can be inferred without any real explanation. A claim that does not clearly explain why a source of alleged bias may have the supposed effect is likely to be rejected as a 'bare assertion' of an interest. This second step of the Ebner test requires rigour because the courts have stressed that a claim of bias must be 'firmly established'. It is not enough that the facts raised in support of the claim create 'a vague sense of unease or disquiet' in the fair-minded and informed observer whose judgment is used to determine bias claims".[66]

[76] It follows from the authorities and academic extract quoted above that any determination as to apprehended bias in the context of "logical connection" is not one to be determined simply based upon what those in the legal profession (including decision-makers or lawyers) consider to be appropriate conduct, or purportedly unassailable 'golden rules' of conduct. Any claim as to logical connection will never be grounded upon the mere assertion that 'one plus one equals two'. Further, overemphasising some facts, minimising others, and casting other facts as irrelevant, can only give rise to error in that the entire factual matrix will not have been taken into account when assessing the relevant logical connection.

Private (ex parte) communications are not sufficient, in and of themselves, to establish a 'logical connection'

1. In Construction, Forestry, Mining and Energy Union v LCR Group Pty Ltd (LCR Group) the Full Bench of this Commission stated: [67]

"[30] The circumstances in which ex parte communications between a party to proceedings and a judge or a tribunal member might give rise to a reasonable apprehension of bias were discussed by the Federal Court Full Court in John Holland Rail Pty Ltd v Comcare as follows:

"[11] As initially propounded before us, John Holland's argument apparently assumed (contrary to the analysis in relevant authorities) the existence of a general rule that any unilateral communication by a party with a judge's chambers is a serious impropriety the acquiescence in which, by an associate, could give rise to a reasonable apprehension of bias in the judge.

[12] The rule is that a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the conduct or outcome of the case. See, for example, Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 ("Re JRL") at 346 (Gibbs CJ) and 350 (Mason J), both citing Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322 at 337 and Reg. v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VicRp 10; [1973] VR 122 at 127. In this context, communications made by one party without the knowledge of the other are governed by the principle that a judge should disqualify himself from hearing a matter where a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the issues in the case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 ("Ebner") at 344; British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; [2011] HCA 2 ("British American v Laurie") at 464-5, [139]-[140]; Re JRL at 351. This is the apprehension of bias principle.

[13] In the course of argument, counsel for John Holland qualified the above submission, contending that a unilateral communication between a party (or practitioner) and judge's chambers would give rise to a reasonable apprehension of bias, unless it were established by affidavit evidence (or, presumably, a similarly high degree of proof) that the unilateral communication related solely to procedural or practical matters. We return to this submission hereafter.

[22] As already stated, the authorities do not support the proposition that there is any necessary impropriety if a party or practitioner communicates unilaterally with a judge's chambers. Whether or not such a communication is improper depends on all the circumstances, including, principally, its nature, subject matter, and perhaps, its sequence and extent. There is no impropriety in a party's unilateral communication with chambers in relation to procedural, administrative or practical matters, although a sustained sequence of communications not circulated to the other parties, even in relation to matters of this kind, could, at a certain point, become unprofessional or improper in the absence of some good reason: see, for example, Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540.

[23] On the other hand, save in the unusual circumstances warranting an ex parte application, it is clearly improper for parties or their practitioners to attempt to communicate unilaterally with a judge's chambers in relation to the substantive issues in the litigation. Every communication of this kind must be circulated to, or made in the presence of, the other parties (unless the other parties have previously consented to its unilateral communication to the judge: see Fisher at 352). Breach of that principle is not only an impropriety on the part of the party making the communication but may, in certain circumstances, found, or be a factor contributing to, a reasonable apprehension of bias, alternatively, lack of procedural fairness, on the part of the judge. It does not follow from this, however, that the mere making of a unilateral communication raises a presumption of impropriety (as John Holland's argument assumed), thereby casting on the parties involved (including the practitioner, chambers staff who received or engaged in the communication and, in some cases, the judge) an onus to prove the contrary by means of affidavit or a similar level of proof. In the present case, moreover, the mere fact that Comcare's solicitor declined to make an affidavit setting out his conversation with the judge's associate could not make out a case for apprehended bias that did not otherwise arise".

[31] Although John Holland concerned a unilateral communication initiated by a party with a judge's chambers and not the opposite situation here where the communication was initiated by the tribunal member, we nevertheless considered that the principle stated in John Holland was applicable. We therefore approached the issue on the basis that an ex parte communication, even about a substantive issue, would not automatically constitute a basis for a reasonable apprehension of bias, but it might do depending on the circumstances of the particular case. The two-step test in Ebner remained to be satisfied.

[32] While the simple fact of the ex parte communications might have been sufficient to satisfy the first step of the test, we did not consider, in relation to the second step, a fair-minded observer might perceive a logical connection between those communications and the possibility that the Senior Deputy President might not bring an impartial mind to the issue".[68]

[78] In adopting the reasoning of the Full Bench above, I point out that ex parte communications do not give rise to an assumption as to the existence of a 'bright line' rule when it comes to assertions of apprehension of bias. It follows that it is not sufficient for a party to simply demonstrate or assert the existence of such a hard and fast (or drop dead) rule as to ex parte communications without identifying how the rule is said to apply to the facts and circumstances of a particular case.

1. REX's written and oral submissions refer me to various authorities that (in summary) state that there is (or in effectively is) a "golden rule" that there should be no ex parte communication between a decision-maker and a party (and/or their legal representative) to proceedings, or a witness in the proceedings.[69] The golden rule is said to be even more important after judgement has been reserved. For the purposes of this decision, I need not quarrel with, or otherwise challenge, the existence of this golden rule. Indeed, these proceedings concern a claim as to an apprehension of bias, not the existence of a golden rule. In this regard, the golden rule is not a bright line rule, a hard and fast rule, nor a drop-dead rule in cases of apprehended bias. The existence of the golden rule is simply one matter, albeit an important matter, amongst a whole range of matters in all the circumstances of the case, that the fair-minded and informed lay observer will take into account.

2. Further, I note that REX has identified from the authorities it relies upon that an ex parte communication in breach of the golden rule can never be "innocuous"[70], and if it has the "purpose" of "influencing" a decision-maker, the communication may amount to contempt, even serious contempt.[71]

[81] I note that I reject the assertion that Mr Hanson's lawyer, via the Lawyer Disclosure or otherwise, has sought to "influence" me in my determination of these proceedings (see paragraphs [146] to [149] of this decision).

[82] I equally reject REX's submissions, to the extent that they seek to assert, directly or indirectly, that a breach of the golden rule becomes the main or central determinative factor, or the most significant or over-riding consideration (in the mind of the fair-minded and informed lay observer) on the issue of prejudgement, because a breach of the golden rule:

(b) has the potential to amount to, or be conflated with, contempt.

[83] An assertion of this kind is not supported by cases such as Ebner, Locabail, and the decision of the Full Bench of the Commission in LCR Group.

[84] There are no separate or free-standing rules of automatic recusal or disqualification in cases of apprehended bias, nor are there rules that elevate breaches of, for example, the golden rule, into an issue beyond but one of the factors to be taken into account by the fair-minded and reasonable lay observer. This is so whether or not such ex parte communication:

(a) occurs after judgement has been reserved; and/or

(b) was initiated by the decision-maker themselves.

[85] The fact that a one-sided communication, at the time it is made, occurs absent the consent or knowledge of the party that is not involved in or otherwise aware of the communication, is essentially the definition of an ex parte communication. Indeed, to the extent that REX has sought in these proceedings to split up and/or break down the specific elements of the ordinary meaning of the term "ex parte communication", it takes its case no further.

1. In his oral submissions, REX's counsel drew heavily from the judgement of the New South Wales Court of Appeal in The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (Tynan Motors).[72] The difficulties in placing any particular reliance upon the decision in Tynan Motors in the facts and circumstances of this Recusal Application are that:

(a) the comments of each member of the Court in Tynan Motors, on the question of apprehended bias arising from an ex parte communication, are all in obiter, with the ultimate question as to the existence of apprehended bias left undecided.[73] Further, the obiter remarks of the court do not deal with the three-step test set down in Ebner;[74]

(b) unlike in this Recusal Application, where the ex parte communication occurred between an Associate and a lawyer for a party, Tynan Motors concerned an ex parte communication directly between a judge and counsel for one of the parties;

(c) Tynan Motors concerns an appeal in which the conduct said to give rise to apprehended bias appears not to have been fully investigated in the court below.[75] As Young CJ states "Although I do take a serious view of this matter, it may be that it is just a storm in a teacup which, if it were able to be fully investigated, would just pass one by".[76] Conversely, in this Recusal Application, the conduct complained of by REX has been disclosed, with the contents of such disclosure set out in the unchallenged Commission Disclosure, the Lawyer Disclosure, the transcript of hearing on 27 October 2020, and these reasons.

(d) Young CJ, who authored the leading judgement in Tynan Motors, makes the point that where a suspicion is raised in relation to the existence of, or content of, an ex parte communication between a judge and a lawyer for a party, and the lawyer involved fails to give evidence in respect of such communication, the Court's suspicion deepens. However, there is no analogy to be made in this regard with this Recusal Application. Mr Morgan, as lawyer for Mr Hanson, has confirmed that the best evidence of his conversation with my Associate is as contained in the Lawyer Disclosure.

1. To the extent that REX relies upon the case of Re JRL,[77] I do not consider it on point, other than to the extent that Mason J refers to the capacity for a subsequent disclosure to "dispel" any issue as to apprehended bias (including by reference to the fact that such disclosure will be taken into account (in full) by the fair-minded and informed lay observer when applying the three-step test set out in Ebner).[78]

[88] I also note that the facts of Re JRL are not the facts of this case in that:

(a) the question as to apprehended bias in Re JRL arises from a private communication directly between a counsellor (witness) and a judge;

(b) it appears that there was not full disclosure by the judge of the private communication;[79]

(c) in terms of what was disclosed by the judge, the High Court found that the communication that did occur between the counsellor and the judge was made "with a view to influencing the conduct of the case",[80] by a witness (counsellor) that strongly supported the wife's case and expressed that view to the judge privately on the ultimate issue for determination in the proceedings.[81] It was in those circumstances that the High Court said that subsequent disclosure, in those specific facts and circumstances, could not cure what had already transpired;[82] and

(d) the private communication (discussion) that was had between the counsellor and the judge was not authorised by the relevant legislation and the applicable family court rules.[83]

1. For the purposes of this decision, I also adopt the analysis and conclusions on Re JRL by Brereton J in Carbotech-Australia Pty Ltd and Anor v Yates & 14 Ors,[84] and by the majority of the Full Court in Charisteas.[85]

2. To the extent that REX relies upon the cases of Haldane v Chegwidden (Haldane) [86] and The City of St Kilda v Evindon Pty Ltd (City of St Kilda), [87] I do not consider them to be decisions that alter the law as to apprehended bias as recited in this decision. Further, I note that:

(b) neither of these decisions apply the three-step test in Ebner;

(c) the decision in Haldane concerns ex parte communications directly between a decision-maker and a witness; and

(d) the decision in City of St Kilda concerns ex parte communications that occurred directly between a decision-maker and a legal representative.

1. It is always fraught to compare fact scenarios in apprehended bias claims on the basis that a particular set of facts might be said to be more or less akin to the facts being considered. As Robertson J stated in SZRUI v Minister for Immigration and Citizenship:[88]

"It would be an error, in my opinion, to judge one set of facts against another and to reason that, because the present case may be thought to have less extreme facts than another it would or should follow that the present case does not show a reasonable apprehension of bias. In each case the question of fact must be addressed: has apprehended bias been made out in that a properly informed lay person might reasonably apprehend that, as a matter of possibility (real and not remote) the Tribunal might not have brought an impartial mind to bear on the decision in that it had, from that perspective, formed the fixed view that the applicant had fabricated his account of events upon which he based his application for a protection visa and thus that his application failed?".[89]

The importance of 'context' to the hypothetical fair-minded and informed lay observer

[92] A party must positively satisfy the decision-maker that the test for apprehended bias is established.

1. A hypothetical fair-minded and informed lay observer does not rely upon inaccurate or incomplete information.[90]

2. Case law on the question of apprehended bias is replete with statements as to the importance of focusing very (very) close attention to "context",[91] which is highly fact, and degree, sensitive.[92] This is consistent with the test for apprehended bias being an objective one.[93] In other words, the focus as to the "setting" in which particular issues as to bias are said to have arisen is perhaps the most important matter to consider when one turns to assess "the 'logical connection' between the suggested source of bias, and its supposed effect"[94] as to prejudgement leading to impartiality.

[95] This issue of 'context' envelopes into the nature of the hypothetical person known, amongst other names, as the "fair-minded and informed lay observer".

[96] In Johnson, Kirby J articulated the position of the fair-minded and informed lay observer as follows:

"The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious".[95]

1. In Helow v Home Secretary (Helow),[96] Lord Hope of Craighead, citing Kirby J in Johnson, made the following observations about the hypothetical fair-minded and informed lay observer:

"The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The "real possibility" test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively.

Then there is the attribute that the observer is "informed". It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment".[97]

1. In Isbester v Knox City Council,[98] the High Court majority stated of the knowledge of the hypothetical fair-minded and informed lay observer:

"The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision".[99]

1. In Shaw v The Official Trustee in Bankruptcy of the Australian Financial Security Authority,[100] Wigney J further summarised the position of the fair-minded and informed lay observer:

"The fair-minded lay observer is "postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues": Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [12]. While the fictional or hypothetical observer is not a lawyer and is not assumed to have a detailed knowledge of the law, they are taken to be reasonable and to not be "wholly uninformed and uninstructed about the law in general or the issue to be decided": Johnson at [53] (per Kirby J citing R v George (1987) 9 NSWLR 527 at 536, per Street CJ). It is necessary to attribute to the fair-minded lay observer knowledge of all of the circumstances of the case: CUR24 v Director of Public Prosecutions [2012] NSWCA 65; 83 NSWLR 385 at [39]".[101]

1. Justice Wigney's reference to Johnson was previously emphasised by the majority (Gummow ACJ, Hayne, Crennan and Bell JJ) of the High Court in Michael Wilson & Partners Limited v Nicholls:[102]

"As the plurality in Johnson v Johnson explained, "[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues"".[103]

1. At its core, my task in this matter in concluding what information is to be attributed to the hypothetical fair-minded and informed lay observer is a factual determination, considered in its full "legal, statutory and factual" context.[104]

Who is the fair-minded and informed lay observer in these proceedings, and what knowledge does he/she have for the purposes of FREX's Recusal Application?

1. By reference to the decision of Besanko, Flick and Abraham JJ in Martin v Norton Rose Fulbright Australia (No 2),[105] and other case law (as referred to in paragraphs [96] to [100] of this decision, and as footnoted below), my summary of the persona and/or basic knowledge of the hypothetical fair-minded and informed lay observer for the purposes of REX's Recusal Application is as follows:

(a) He/she does not make snap judgements.[106]

(b) He/she is taken to be reasonable.[107]

(c) He/she knows commonplace things.[108]

(e) He/she is not unduly sensitive.[110]

(g) He/she has imputed knowledge of all of the circumstances of the case,[112] including the "actual circumstances of the case",[113] which includes the matters set out in paragraphs [7] to [42] of this decision, the legislative requirements under Part6-4B of the Act,[114] and any 'disclosure' made by a decision-maker or any other relevant person (in this case the Commission Disclosure and the Lawyer Disclosure). As the majority stated in Charisteas v Charisteas (Charisteas):[115]

"The hypothetical observer would be interested in the whole of the circumstances and thus it is necessary to examine the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge and counsel".[116]

(i) He/she is informed and will have regard to the fact that a relevant decision-maker's training, tradition and oath equip the decision-maker with the ability to discard the irrelevant, immaterial and the prejudicial.[117] Further, as Lord Rodger of Earlferry stated in Helow:

"Even lay people acting as jurors are expected to be able to put aside any prejudices they may have. Judges have the advantage of years of relevant training and experience" [including experience gained prior to their appointment].[118]

(j) He/she takes the trouble to inform himself or herself as to the professional obligations of lawyers, including their paramount duty to the court, when interacting with the decision-maker or their chambers, and when assessing any disclosure made by a lawyer to a court or tribunal.[119]

'Disclosure' by a decision-maker may include facts asserted by, or know only to, the decision-maker

1. Relevant 'context' may be provided by the decision-maker himself or herself in recusal proceedings. This would include, for example, setting out context arising from the decision-maker's own knowledge of particular facts or events (Locabail Principle).[120] The Locabail Principle has been held to be applicable before Australian Courts.[121] It applies not only in relation to the assessment of the first two steps of Ebner, but is equally relevant (and important) when one comes to assess the third step, being the "reasonableness" of an apprehension (as exemplified in Johnson).

2. A disclosure by a decision-maker pursuant to the Locabail Principle may be provided before or after any issue or assertion as to apprehended bias arises, or as part of any reasons for decision on the question of apprehended bias. Such disclosure will be known in full to the fair-minded and informed lay observer when considering the context of all of the facts and circumstances of an asserted case of apprehended bias. Indeed, this is wholly consistent with Kirby J's articulation of the fair-minded and informed lay observer in Johnson seeking to "be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances".[122] Further, as Lord Mance pointed out in Helow:

"The question is one of law, to be answered in the light of the relevant facts, which may include a statement from the [here, arbitrator] as to what he or she knew at the time, although the court is not necessarily bound to accept any such statement at face value, there can be no question of cross-examining the [arbitrator] on it, and no attention will be paid to any statement by the [arbitrator] as to the impact of any knowledge on his or her mind: Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] QB 451, para 19 per Lord Bingham of Cornhill CJ, Lord Woolf MR and Sir Richard Scott V-C. The fair-minded and informed observer is "neither complacent nor unduly sensitive or suspicious", to adopt Kirby J's neat phrase in Johnson v Johnson (2000) 201 CLR 488, para 53, which was approved by my noble and learned friends, Lord Hope of Craighead and Baroness Hale of Richmond, in Gillies v Secretary of State for Work and Pensions [2006] UKHL 2; [2006] 1 WLR 781, paras 17 and 39".[123]

[105] It follows from Lord Mance's articulation of the Locabail Principle that whilst it is trite that the test as to apprehended bias is an objective one, with the subjective views of a decision-maker as to their 'ability' to remain impartial irrelevant, the Locabail Principle provides that the contents of a disclosure by a decision-maker are wholly relevant to the extent that such disclosure pertains to relevant facts and circumstances (i.e. even where such facts and circumstances concern knowledge or intentions known only to the decision-maker as to his or her reasons for engaging in any particular conduct, or engaging in any particular relationship). In short, the contents of any disclosure by a decision-maker are facts that are directly taken into account by the fair-minded and informed lay observer. As was stated by the English Court of Appeal (Lord Bingham of Cornhill CJ, Lord Woolf MR and Sir Richard Scott) in Locabail:

"She submitted that the deputy judge's statement on 28 October that he knew no more of the Sudoexport matters than was contained in the press cutting should not be entertained. His state of knowledge, she submitted, was irrelevant. This submission is contrary to authority. In Reg. v. Gough [1993] UKHL 1; [1993] A.C. 646 an affidavit from the juror as to the juror's state of knowledge was accepted.

In our judgment the reasonable onlooker, and the court personifying the reasonable onlooker, would accept the deputy judge's statement about his knowledge and, on that basis, would find no difficulty in concluding that there was no real danger that the judge had been biased".[124]

1. The Locabail Principle is especially relevant in this case in that the substantive proceedings are yet to be decided.[125] In other words, this is not a case where apprehended bias is said to arise after judgement has been delivered.

[107] It is also important to note that:

(a) A requirement to disclose is not an absolute one. Whilst a failure to disclose may affect the ultimate question of a reasonable apprehension of bias, any failure to disclose does not, in and of itself, give a litigant any right to have a decision-maker recuse himself or herself, including for want of procedural fairness.[126]

(b) It is not necessarily the case that a decision-maker need disclose the minutia. For example, a failure to disclosure trivial or unexceptional matters, or matters that would merely flesh-out what has already been substantially disclosed, cannot be used to ground a case as to apprehended bias. The requirements of disclosure are based upon the facts of each case,[127] and its adequacy will also depend upon the time at which it is made.[128] In this case, I accept that the Lawyer Disclosure is the best evidence of the overall 'content' of the discussion between Mr Hanson's lawyer and my Associate on 14 August 2020. However, an absence of evidence (or a failure to disclose) what my Associate actually asked Mr Hanson's lawyer, in a conversation that I was not present at or a party to, takes REX's case as to apprehended bias nowhere. The 'content' of the relevant conversation is wholly encapsulated in the Lawyer Disclosure. The questions I asked my Associate to ask Mr Hanson's lawyer are set out in the Commission Disclosure (as is what my Associate reported back to me of that conversation). Again, if there were other parts to the conversation that I do not know about, such matters cannot support a claim of apprehended bias. It ought go without saying that I am the decision-maker, not my Associate, and what I don't know cannot, logically or reasonably, be said to give rise to an apprehension of impartiality. The fact that my Associate is interlayered between myself and Mr Hanson's lawyer is thus of significant importance to the fair-minded and informed lay observer in the facts and circumstances of this case.

'Disclosure' by a decision-maker may cure, or be an antidote for, claims of apprehended bias

1. Not only does 'context' include the terms of any disclosure made by a decision-maker, but such disclosure may also lead to the extinguishment, or eradication, of a claim as to apprehended bias.[129] As the majority stated in Charisteas:[130]

"Whether or not private [ex parte] communication in this setting is sufficient to establish the second limb [of Ebner] and disqualifying conduct, will depend on the particular circumstances of the case and the characteristics of the hypothetical observer. As Mason J observed in JRL at 351, in the case of private communication, it is necessary to examine the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge (see also Wilson J at 359-360 and Dawson J at 371-372). Consideration of the whole of the circumstances is not confined to the conduct (private communication) and may include what was done by the judge subsequently. The point being, that subsequent events may be sufficient to dispel any reasonable apprehension of bias notwithstanding an earlier lapse in the observance of proper procedures (JRL per Dawson J at 372)".[131]

1. A legally represented party maintaining an assertion as to apprehended bias post a disclosure by a decision-maker will of course rely heavily upon the advice of their lawyers (i.e. any claim as to apprehended bias requires careful consideration of a disclosure in the context of applicable legal and factual matters, including whether any clarification of any of the matters set out in such a disclosure should be sought from the decision-maker, prior to any decision being made to continue to maintain the claim of apprehended bias). That said, it is wholly for a client, in receipt of such advice, to determine whether it wishes to press on with a recusal application in the face of a disclosure, and/or absent any clarification of same.[132]

Apprehended bias cannot be sustained based upon what a decision-maker 'does not know'

[110] It is hardly controversial that apprehended bias cannot be sustained if it is substantially based upon based upon what a decision-maker does not know. This was put beyond any doubt by the English Court of Appeal in Locabail:

"When applying the test of real danger or possibility (as opposed to the test of automatic disqualification under the Dimes case[1852] EngR 789; , 3 H.L.Cas. 759 and Ex parte Pinochet (No. 2) [1999] UKHL 1; [2000] 1 A.C. 119) it will very often be appropriate to inquire whether the judge knew of the matter relied on as appearing to undermine his impartiality, because if it is shown that he did not know of it the danger of its having influenced his judgment is eliminated and the appearance of possible bias is dispelled. As the Court of Appeal of New Zealand observed in Auckland Casino Ltd. v. Casino Control Authority [1995] 1 N.Z.L.R. 142, 148, if the judge were ignorant of the allegedly disqualifying interest: "there would be no real danger of bias, as no one could suppose that the judge could be unconsciously affected by that of which he knew nothing ...

It is noteworthy that in Reg. v. Gough [1993] UKHL 1; [1993] A.C. 646 evidence was received from the juror whose impartiality was in issue (see pp. 651G and 658D), and reliance was placed on that evidence (see p. 652F); both in the Court of Appeal and the House of Lords it was accepted that if the correct test was the real danger or possibility test the appeal could not succeed, since the allegedly disqualifying association had admittedly not been known to the juror at the time when the verdict had been returned, and therefore there was no possibility that it could have affected her decision: see pp.652D, 660G and 670G.

In answering this question, the court must take into account the actual facts as disclosed by the evidence and, in particular, what it was that the judge knew at the time the case was being heard.

This is a question that we have put to ourselves. In our view, once the hypothesis that the judge "did not know of the connection" is accepted, the answer, unless the case is one to which the Dimes case[1852] EngR 789; , 3 H.L.Cas. 759 applies, becomes obvious. How can there be any real danger of bias, or any real apprehension or likelihood of bias, if the judge does not know of the facts that, in argument, are relied on as giving rise to the conflict of interest? ... all that is necessary is to ask whether, in the light of the judge's actual knowledge at the time of the hearing and of any other relevant facts established by the evidence, the real danger of bias test has been satisfied".[133]

1. A recent example of a case in which a decision-maker set out some of his subjective views in determining to dismiss a recusal application was in Ozmen v Culture Map Pty Ltd (No 1),[134] where Rares J stated:

"Let me be quite clear that, as Ms Nolan accepted, I have no animus against her. She is a member of the bar of long standing and repute. Perhaps she was entitled to feel somewhat aggrieved, on 31 July 2020, about the displeasure that I expressed that the orders I had made on 22 May 2020 for the preparation of the hearing on 31 July 2020 had not been obeyed, and that she did not even have the 22 May 2020 orders in front of her. At the time I thought, and still think, that she was cavilling with my earlier case management, based on the previously agreed position that there would be a reference, she having had the debate and lost it at the 22 May 2020 case management hearing.

Be that as it may, in my opinion, the fair-minded lay observer would regard (as I did) her conduct as an irrating flourish of counsel that was robustly checked by the judge".[135]

The No-Contest Principle ordinarily applies to cases of apprehended bias

1. It is uncontroversial that hearings involving a claim of apprehended bias, which are being determined before the decision-maker whose recusal or disqualification is sought, should not involve a contest of facts (No-Contest Principle).[136] I am not aware of any reason as to why the No-Contest Principle should not be applied to this Recusal Application. It follows that many of REX's attempts to place facts into contention, and/or to ground its "we just don't know" submissions,[137] collapse. Notwithstanding this, it is appropriate to deal with such submissions in this decision to the extent they can be reasonably deciphered.

[113] On 24 August 2020, REX filed written submissions in support of its Recusal Application. They read:

1. The Respondents have made an application that the Deputy President recuse himself on the ground of apprehended bias. The grounds for the application have been set out in the Form F1 filed by the Respondents on 20 August 2020 and the documents relied upon by the Respondents were attached to the Form F1 as attachments 1-4.

2. The Respondents file this Outline of Submissions in accordance with the directions issued by the Deputy President on 20 August 2020.

3. Given that the directions require that the Outline of Submissions be no more than 6 pages these submissions are an outline only and the Respondents seek to be heard on their application rather than have the application dealt with on the papers. The Respondents seek to elaborate on the matters set out in this outline in oral submissions before the Commission.

4. The ground upon which the Respondents seek that the Deputy President recuse himself is apprehended bias. The Respondents do not allege actual bias.

5. The test for apprehended bias is well known to the Commission and is a principle that is fundamental to the proper administration of justice. It is important because justice does not only need to be done but it also needs to be seen to be done. The rule that a member of the Commission ought to recuse himself or herself if there is a reasonable apprehension of bias enhances and protects the reputation of the Commission as an impartial and independent body created to discharge its obligations under the _Fair Work Act 2009 (_Act).

6. The apprehension of bias principle was stated simply by the High Court of Australia in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 where the majority said at [6]:

"a judge is disqualified if a fair - minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide".

7. That principle has been quoted with approval on many occasions including by the Federal Court of Australia (see for example Kirby v Centro Properties Limited (No. 2) [2011] FCA 1144; (2011) 202 FCR 439 at [441]) and the Full Bench of the Fair Work Commission (see Bronze Hospitality Pty Ltd v Janell Hansson [2019] FWCFB 3456 at [22]). The Respondents rely upon those authorities in particular on what was said by Justice Middleton in Kirby at [441-442].

8. In this matter, the cause of the apprehension of bias is a telephone conversation between the Associate to the Deputy President and Mr Morgan of the ALAEA, the representative of the Applicant. The Respondents were not a party to that conversation but from the available evidence before the Commission a fair-minded lay observer would conclude that the following had occurred:

(a) The Deputy President instructed the Associate to contact the ALAEA by telephone. The Deputy President did not instruct the Associate to contact both parties.

(b) The Associate contacted Mr Morgan by telephone. During the telephone discussion Mr Morgan provided information to the Associate for the purpose of the Deputy President making his decision in the matter. We discuss the content of that conversation at paragraph 11 below.

(c) After the discussion occurred (on Friday 14 August 2020) neither the Deputy President nor the Associate contacted the Respondents to advise them of the conversation or its contents.

(d) Neither the Deputy President nor the Associate made any corresponding enquiry of the Respondents.

(e) Some days after the conversation (on 18 August 2020) Mr Morgan sent an email to the Associate setting out what was purportedly discussed in the conversation. The email was copied to the Respondents' representative.

(f) The Associate replied to Mr Morgan's email on 18 August 2020 with an email that noted Mr Morgan's email. Importantly, the reply from the Associate did not seek any comment, information or response from the Respondents nor did it say anything that would suggest to a fair-minded lay observer that any comment, information or response from the Respondents was sought or desired.

9. The only evidence that the Commission has before it as to what was said during the conversation is the email from Mr Morgan to the Associate sent at 2.02 pm on Tuesday 18 August 2020. On its face the email from Mr Morgan identifies responses to the Deputy President's enquiries "as per our discussion last week (on 14 August 2020)". A fair-minded lay observer would, of necessity, infer from Mr Morgan's email, in the absence of any other evidence of what was said in the conversation, that what was said in the conversation is set out in the numbered paragraphs of Mr Morgan's email:

"Mr Hanson only holds licenses to certify REX aircraft and therefore Mr Hanson has to, and wants to, return to REX in order to resume his career as a LAME (i.e. Mr Hanson will not be able to work for another maintenance organisation as a LAME)".

(b) This statement is both misleading and prejudicial. As a licensed aircraft maintenance engineer (LAME) Mr Hanson holds licenses to certify particular types of aircrafts. Those licenses are readily transferrable to employment with any organisation that operate those aircraft types. This is a matter that had it been raised in evidence by Mr Hanson in the proceeding would have been challenged by the Respondents. The statement that Mr Hanson would not be able to work for another maintenance organisation as a LAME is untrue and prejudicial for reasons discussed below.

"ít is my understanding that Mr Hanson is still presently receiving weekly payments of workers compensation, and that Mr Hanson's nominated treating Dr will not certify Mr Hanson as fit to return to work unless he has the protection of bullying orders."

(d) This statement, particularly the last sentence, is highly prejudicial to the Respondents. It suggests, without any evidence being given in the proceeding that the medical opinion of Mr Hanson's treating doctor is that he will not be able to return to work unless the Commission makes an anti-bullying order. When this is coupled with the earlier statement that Mr Hanson will not be able to work for another maintenance organisation as a LAME the effect is strikingly prejudicial because it makes an untested and unfounded assertion that the only way Mr Hanson can ever return to employment with anyone is if the Commission makes the orders sought by Mr Hanson.

(e) Essentially, the statements have the effect of putting the Commission in the position where if the Commission does not make the anti-bullying orders sought by Mr Hanson it will be, it is suggested, consigning Mr Hanson to be unable to return to work for Regional Express or any other employer in his occupation as a LAME.

(f) These assertions should never have been made and had they been made either by way of evidence or submission in the proceeding would have been strongly challenged by the Respondents.

(g) The Respondents had no opportunity to do so because the assertions were made in private conversation between the Associate, at the instruction of the Deputy President, and Mr Morgan. A fair-minded lay observer would consider the statements made to be highly prejudicial to the Respondents and to give rise to a reasonable apprehension of bias on the part of the Deputy President.

10. If the Commission is not minded to accept that the email from Mr Morgan is the best evidence of the content of the conversation between Mr Morgan and the Associate, the Respondents submit that the appropriate course would be to require Mr Morgan to give evidence as to the conversation and be available for cross-examination by the Respondents.

11. It is telling that after the receipt of the email from Mr Morgan confirming what was discussed in the telephone conversation on 14 August 2020, the Associate did not seek any response from the Respondents. If it was intended that the Associate would obtain a response from the Respondents and give a fair opportunity for the Respondents to put that response, then the Associate did not do so in the email response, nor did it occur until after the Respondents raised directly with the Deputy President a request that the Deputy President recuse himself on the ground of apprehended bias.

12. A fair-minded lay observer would hold a reasonable apprehension of bias because if it were not for the Respondents having written to the Deputy President seeking that he recuse himself they would not have been asked to respond to the information in the conversation between Mr Morgan and the Associate and if it were not for Mr Morgan confirming the content of the conversation in his email of 18 August 2020 the Respondents would not have known about that conversation. The only inference that could be drawn by a fair-minded lay observer was that the Deputy President would have received the information from Mr Morgan and acted upon it in reaching his decision (particularly given the concession in the Associate's email dated 19 August 2020 that "judgement in the substantive proceedings is imminent"). Further, the fact that no response to the information provided by Mr Morgan was sought from the Respondents when Mr Morgan confirmed that information by way of email would give rise to the inference by the fair-minded lay observer that no response was required by the Commission because it would accept whatever information was provided by Mr Morgan.

13. It is well established that the provision of information to a judge or a member of a tribunal privately without the knowledge of one party may give rise to a reasonable apprehension of bias in the mind of a fair-minded lay observer. That principle was set out in Re: JRL ex parte CJL [1986] HCA39. In that case the judge of the Family Court hearing the matter at first instance had received private communications from a Court counsellor in relation to the proceedings. The private views expressed by the Court counsellor favoured one party and it was held that this gave rise to a reasonable apprehension that the judge might not bring an impartial mind to the matter. The decision of various members of the High Court in Re JRL are relevant to this matter. Those principles and observations are as follows:

(a) "Justice must not only be done but must manifestly be seen to be done: when a judge has received in private representations concerning a case, the Court will not inquire whether the representations worked to the prejudice of the party against whose interest they were made - it is enough that they might do so" (per Gibbs CJ at [11]); and

(b) "it would be inconsistent with basic notions of fairness that a judge take into account, or even receive, secret or private representations on behalf of the party or from a stranger with reference to a case which he has to decide" (per Mason J at [1]).

14. In Re JRL immediately after receiving the private communication from the Court counsellor, the judge called counsel for both parties into her Chambers to introduce them to the counsellor and told them that the counsellor had some recommendations in relation to the child. Then a conversation occurred substantially between the judge and the counsellor at which the counsel of the parties were present (per Gibbs CJ at [3]). In Re JRL that immediate attempt by the judge to rectify the fact of the private conversation with the Court counsellor was not sufficient for a majority of the High Court to consider that any reasonable apprehension of bias had been rectified to the extent that a fair-minded lay observer would not have such a reasonable apprehension of bias.

15. This is not a case where a private communication occurred and the prejudicial effect of that private communication was immediately rectified by the Commission by advising the other party of the content of the communication and giving the other party an opportunity to respond. A fair-minded lay observer would observe that the Commission took no steps to do any of those things until after the solicitors for the Respondents requested that the Deputy President recuse himself. Accordingly, the belated step of seeking a response from the Respondents does not constitute rectification of the private communication such that a fair-minded lay observer would not consider there to be a reasonable apprehension of bias. This is particularly so where the Commission and the Applicant do not appear to agree as to the substance of the conversation on 14 August 2020.

16. In response to the request by the Respondents for the Deputy President to recuse himself the Associate to the Deputy President sent an email on behalf of the Deputy President at 12.09 pm on Wednesday 19 August 2020. In that response the Deputy President:

(a) said that the position apparently taken by the Respondents was "not the legal position, and is a selective gloss on the "case". Indeed it is a gloss on all case law concerning recusal for apprehended bias."

(b) said "the Deputy President further points out the concerns raised in this matter are in no way comparable with the factual circumstances in Re JL"; and

(c) said "the Deputy President will not be referring this matter to the President. As you ought to be aware, the President does not have authority to interfere with the decisions of other members, including procedural decisions, except in properly constituted appeal proceedings. Under s. 582(3) of the Fair Work Act 2009, Commission members are not subject to direction from the President or anyone else about decisions they make in matters allocated to them.";

(d) noted that judgment in the substantive proceedings is imminent (the strong inference being that the information sought by the Associate from Mr Morgan was relevant to the Commission's consideration); and

(e) asserted (without any means by which the Respondents could test such an assertion) that the "contents of Mr Morgan's email reply of 18 August 2020 go beyond the communication that was had over the telephone..." and did not mention the matters set out in paragraph 11(c) above.

17. The statements made by the Deputy President in response to the letter from the solicitors for the Respondents requesting that the Deputy President recuse himself are also likely to give rise in the mind of a fair-minded lay observer to a reason of apprehension that the Deputy President has prejudged the application for recusal.

18. The Deputy President did not accept the letter from the solicitors for the Respondents as being an application for recusal and observed that "should the Respondent wish to press its claim for recusal, it should do so by formal application (i.e. by filing a Form F1)." At this point, therefore, the Deputy President had not received a formal application, any comprehensive grounds, evidence or submissions in relation to recusal. Nevertheless, the Deputy President expressed firm and absolute views on the relevant case law and the factual circumstances and their comparison to those in Re JRL. A fair-minded lay observer would consider that the statements made on behalf of the Deputy President express final views on issues that are meant to be determined after a formal application was made and after grounds, submissions and evidence was put.

19. In respect to the statement in relation to the referral of the matter to the President, in the letter from the solicitors for the Respondents the suggestion made was that the Deputy President recuse himself and refer the matter to the President for allocation to another member. The second part of that suggestion was plainly a suggestion that would only occur if the Deputy President recused himself. In that regard it was an anodyne unremarkable suggestion because the proceeding would, of necessity, have to be referred to another member of the Commission to be dealt with. The suggestion that it be referred to the President would ensure that the allocation of the matter would be done in whatever usual process the Commission adopts.

20. A fair-minded lay observer would take the response of the Deputy President to that suggestion as being a clear indication that the Deputy President will not refer the matter to the President and accordingly does not intend to recuse himself. Given that this is the very issue in the application, in respect of which at that time of the Deputy President's statement, no detailed grounds, submissions or evidence had been filed, a fair-minded lay observer would consider that Deputy President may not bring an open mind to this issue.

21. Accordingly, a fair-minded lay observer would consider that the statements made on behalf of the Deputy President in the email from the Deputy President's Associate sent at 12.09pm on Wednesday 19 August 2020 give rise to a further reasonable apprehension of bias such that the Deputy President ought to recuse himself.

22. The Respondents will address any case management principles in oral submissions".

[114] On 28 August 2020, Mr Hanson filed written submissions neither supporting nor opposing the Recusal Application. They read:

1. The Respondents (collectively, Rex) have applied for Boyce DP to recuse himself from Mr Hanson's application under s.789FC.

2. Although it is not expressly identified as an order sought, Rex also appears to seek that the Deputy President recuse himself from the recusal application. Presumably it wishes this to be determined first.

3. The application comes in the dying days of the proceedings. It was heard over five days, and the Commission has been reserved since 18 February 2020. A decision in related proceedings was issued on 29 July 2020. This work will be lost if the matter must be re-heard by another member, at particular detriment to Mr Hanson.

4. That said, Mr Hanson does not join in the application in support or opposition. Properly, it is a matter between Rex and the Deputy President. These submissions are made to assist the Commission in respect of certain areas.

5. Rex relies on apprehended bias. The summary is trite: would a fair-minded lay observer reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the dispute: Michael Wilson & Partners v Nicholls (2011) 244 CLR 425 at [31]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) at [6].

b. ask whether there is a logical connection between said conduct and the alleged risk of departure by the decision-maker from deciding the matter on its merits,

7. This is an objective test, assessed from the perspective of the 'fair-minded lay observer'. This lay observer is not taken as a total neophyte; they are presumed to have knowledge of a range of relevant matters including the facts and circumstances of the proceedings, the nature of the relevant body and the professional ethics of the judicial officers involved.

8. Unilateral communications are, in effect, a subset of apprehended bias. It reflects the cardinal principle that cases should be tried on 'the evidence and arguments presented...in open court by the parties or their representatives and by reference to those matters alone': Re JRL; Ex Parte CJL [1986] HCA 39; (1986) 161 CLR 342 (Re JRL) at 350.

9. This does not mean, however, that any one-sided communication automatically gives rise to an apprehension of bias such that a decision-maker must recuse themselves. It must be assessed carefully on a case-by-case basis, noting the nature of the communication, its relationship to the issues in dispute, the usual operation of the relevant Court or Tribunal and any remedial steps taken. As Mason J observed in Re JRL at 351, in 'some, perhaps many' situations' subsequent disclosure will be sufficient to dispel any reasonable apprehension.

10. Fundamentally, a conclusion that a reasonable apprehension of bias by way of pre- judgement arises must be very firmly established: R v Commonwealth Conciliation and Arbitration Commission, ex parte Angliss Group (1969) 122 CLR 546 at 553-554. It is just as critical to ensuring the integrity of the system of justice that judicial officers do not recuse themselves too readily. A decision-maker must not disqualify himself without good cause: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Honda Australia Motorcycle v Johnstone [2005] VSC 387.

11. As a starting point, the impugned conduct must be identified in full, and without slant or gloss.

13. The Deputy President's associate, at his Honour's request, contacted the solicitor for Mr Hanson to ask for an update as to Mr Hanson's current employment status.

14. Rex was not given notice of, or involved in, this conversation. However, the Deputy President had intended to have his associate repeat the enquiry of them.

15. Mr Hanson's solicitor confirmed his response by email, copying in Rex's solicitors. Rex takes issue with the matters set out in that email, discussed below. The Deputy President's associate acknowledged the response.

16. Before enquiries could be made of Rex, Rex's solicitors wrote to the Deputy President in response to this email, requesting that he recuse himself, and refer the matter to the President.

a. disclosing the full extent of the conduct referred to above;

b. acknowledging that, while his Honour had intended to make the same enquiries of Rex (but had been pre-empted in doing so by the letter, it would have been a better course to simply email both parties;

c. refusing to refer the matter to the President solely on the basis of correspondence, and directing Rex to make the application in proper form.

18. Rex was subsequently directed to confirm Mr Morgan's advice that Mr Hanson was still employed by Rex, but off work on workers compensation. It did so on a 'without prejudice' basis.

19. Although it is a secondary part of Rex's application, as a matter of common sense the question of whether the Deputy President must recuse himself from the recusal application must be dealt with first.

20. This application is made on the basis of the Deputy President's email in response to Rex, discussed at 17 above.

22. First, it flies in the face of the long-standing principle that recusal applications should be determined by the impugned decision-maker: Australian National Industries Ltd v Spedley Securities (1992) 26 NSWLR 411 at 436; Wentworth v Graham [2003] NSWCA 240.

23. Second, Rex has not grappled with how this would be done. The Deputy President likely does not have power to assign the recusal application elsewhere. It appears that this would require an application to the President for a direction under s.582(3)(d) for part of the matter to be dealt with by another member (although this course has its own difficulties). It is not open to Rex to make broad demands as to how matters are to be dealt with and ignore the minutiae of how it is to actually be achieved.

24. Third, the correspondence relied on does not seem to form a proper basis for an apprehension of bias anyway. It can be fairly described as strongly-worded; this is not outside the norms of judicial communication, particularly in response to an extraordinary request made in a high-handed letter rather than in proper form. It does not get near the prolonged or intense animosity which would give rise to an apprehension: cf Galea v Galea (1990) 19 NSWLR 263; Victoria v Psaila [1999] VSCA 193.

25. There is no suggestion that Rex is unaware of, or has been unable to respond to, any of the matters which passed between Mr Hanson's representative and the Deputy President (via his associate).

26. The complaint appears to fixate on the content of Mr Hanson's representative's communication. Rex, in strong terms, decry this as being highly prejudicial material which they would have responded to if in evidence. There are again three difficulties.

27. First, the comments precisely reflect matters which were in evidence and which Rex, despite filing reams of evidence and cross-examining Mr Hanson extensively, did not respond to or challenge. Per Mr Hanson's statement (exhibit A1) at [119] (my emphasis):

"I need to go back to work, but I need protection. I do not have a choice to go anywhere else. Firstly, I only have a license to work on REX aircraft, and therefore if could go anywhere else I would have to drop back to being [an] Aircraft Maintenance Engineer (AME) as opposed to a LAME. This would probably result in a $30,000 pay-cut. Secondly, the industry is very small and my name is out there as a result of REX identifying me. I know it will be very hard to get another job".

28. Similarly, various worker's compensation certificates are annexed to Mr Hanson's statement. Rex's submissions in this respect must fail.

29. Second, the complaint is with statements which were fully disclosed to Rex, and which it has had an opportunity to respond. It is more focused on Mr Hanson's representative's comments than anything done by the Deputy President. Critically - and very much unlike the situation in Re JRL - no view has been expressed by the Deputy President and there is no suggestion these comments have had any influence whatsoever on the conduct of the matter.

30. Finally, Rex's submissions do not address the nature of the enquiries, or the context. The Commission is an industrial tribunal. Industrial matters evolve over time. This is notoriously so in bullying matters, particularly in respect of the complainant's employment status. It is entirely possible that circumstances might have changed in the months since the matter was heard. A query of this kind is not out of keeping with the norms of the Tribunal's operation.

31. Critically, the enquiry went no further than an update - crucially it did not touch on any of the substantive issues in dispute. This must be taken into account in considering whether a reasonable apprehension of bias arises.

32. To the extent that the response goes further than the question, the Deputy President would be considered capable, as any judicial officer, of disregarding these aspects. This is an ordinary incident of judicial practice which again must be taken into account in considering whether a reasonable apprehension arises".

[115] On 4 September 2020, REX filed written submissions in-reply in support of the Recusal Application , which read:

1. The Deputy President has directed that the Respondents file with the Commission and serve on the Applicant written Submissions in Reply totaling no more than 5 pages and addressing the basis upon which the matter requires a Hearing. This Outline of Submissions in Reply is filed in accordance with that direction.

2. The Respondents submit that the Application for Recusal should be heard rather than dealt with on the papers. The reasons that the Respondents submit the matters should be heard rather than dealt with on the papers are as follows:

(a) the serious nature of the application and the importance of the principle of apprehended bias to the proper administration of justice;

(b) procedural fairness including a fair opportunity to be heard. The Commission's directions have restricted the Respondents to an initial submission of no more than 6 pages and a reply submission of no more than 5 pages (a substantial part of which was needed to address the need for a hearing). This does not properly enable the Respondents to make all the submissions they wish to make, nor to ensure that the submissions and evidence are ventilated with sufficient detail;

(c) the need for the parties to be informed of, and make submissions in respect of, the findings of fact and law already alluded to in the email sent on behalf of the Deputy President on 19 August 2020. In that email the Deputy President made comments that would suggest to a fair-minded lay observer that, as at 19 August 2020 (which was prior to the recusal application being filed and prior to any submissions or evidence being filed by the parties) the Deputy President had:

(i) already determined the facts relevant to the application for recusal (in order for the Deputy President to have determined that "the concerns you raise in this matter are in no way comparable with the factual circumstances in re JL"); and

(ii) already determined the law relevant to the application for recusal (in order for the Deputy President to have determined "That is not the legal position, and is a selective gloss on the case quoted. Indeed, it is a gloss on all case law concerning recusal for apprehended bias."); and

(d) the need for the parties to have a fair opportunity to elicit the facts relevant to the recusal application and then make submissions in respect of those facts. Notwithstanding the views already expressed by the Commission as to the facts, the Respondents intend to, at the time of filing these submissions, seek that the Commission make an order requiring Mr Morgan to attend a hearing and give evidence. The Respondents will seek to examine Mr Morgan and then address the Commission on why the Commission ought to accept that the content of the conversation between Mr Morgan and the Associate on 14 August 2020 was as is set out in paragraph 9 of the Respondents' Outline of Submissions dated 24 August 2020.

3. The Respondents submit that in circumstances where the Respondents wish to be heard on their application, and for the reasons set out in paragraph 2 above, the Commission ought to list the application for hearing rather than determine the matter on the papers.

Submissions in Reply to the Applicant's Submissions Re Recusal dated 28 August 2020 (AS)

4. The Applicant says that he neither supports nor opposes the application for recusal (AS paragraph 4). The Applicant says that his submissions are to assist the Commission in the application.

5. The Respondents' submit that the AS are of little assistance to the Commission because they do not seek to fully engage with the factual circumstances of the matter (by clearly articulating and confirming what was said in the conversation between Mr Morgan and the Associate).

6. This is despite the Applicant suggesting that, as a starting point, the impugned conduct must be identified (AS paragraph 11). It is unfortunate and somewhat surprising that the Applicant then does not seek to identify in full what has occurred.

(a) the Respondents have identified what they say they believe the content of the conversation between Mr Morgan and the Associate on 14 August 2020 to have been (Respondents' Outline of Submissions paragraph 9);

(b) the Applicant has had the opportunity, in the AS, to deny or challenge the Respondents' characterisation of what occurred in that conversation but has chosen not to do so;

(c) the closest that the Applicant gets to engaging with the content of the conversation is at paragraph 15 of the AS where the Applicant says:

"Mr Hanson's solicitor confirmed his response by email, copying Rex's solicitors".

8. The Respondents submit that absent any evidence being given by Mr Morgan the Commission should find that the content of the conversation between Mr Morgan and the Associate on 14 August 2020 was as set out in paragraph 9 of the Respondents' Outline of Submissions. If the Commission is not amendable to that submission, the Commission should order Mr Morgan to give evidence (as requested by the Respondents) in which case the Respondents would then seek the opportunity to make further submissions in light of that evidence.

9. The Respondents have, by their solicitors, written to Mr Morgan seeking his confirmation of the content of the conversation. A copy of this letter is Attachment 1. Mr Morgan replied by letter partially confirming the content of the conversation. A copy of this letter is Attachment 2.

10. The Respondents do not know the basis upon which the Deputy President appears to have made determinations as the content of the conversation between the Associate and Mr Morgan, as set out in the email sent on behalf of the Deputy President to the Solicitors for the Respondent on 19 August 2020. The basis of those apparently determined facts has not been disclosed to the parties, nor can it be tested in any way. It would be unfair and unreasonable for the Commission to rely upon whatever information was used to make those determinations.

11. In paragraph 15 of the AS the Applicant makes no mention or submission as to the fact that the acknowledgement by the Associate of the email from Mr Morgan did not also make any enquiry of, or seek response from, the Respondents. If the intention was for those enquires to be made, there is no explanation and nor does the Applicant propose any explanation, as to why the Associate did not, in acknowledging the email from Mr Morgan, take the opportunity to then seek a response of the Respondents on those matters.

12. In paragraph 16 of the AS the Applicant then says that the letter from the Respondents' solicitors requesting that the Deputy President recuse himself was sent "Before enquiries could be made of Rex". There is no basis identified for the Applicant to believe that any enquiries were intended to be made of the Respondents and indeed the acknowledgement email from the Associate makes no mention of any enquiries being made of the Respondents. There is no evidence that a response from the Respondents was discussed in the conversation between Mr Morgan and the Associate and nothing from that conversation or from the subsequent email exchange (which occurred some 4 days later) suggests that any enquiries were to be made of the Respondents. Further, the Respondents submit that the conversation between the Associate and Mr Morgan occurred on 14 August 2020. The conversation was self-contained in that Mr Morgan conveyed the information he wished to convey to the Associate in response to enquiries made by the Deputy President. There was no suggestion in that conversation that further enquiries would be made of the Respondents.

13. Some 4 days after that conversation (on 18 August 2020) Mr Morgan sent his confirmatory email to the Associate and the Associate responded acknowledging receipt of the email. Again no enquires were made of the Respondents. The Associate's response acknowledging Mr Morgan's email was sent at or about 3:43 pm on 18 August 2020. The Respondents did not write to the Deputy President until the next day (sent by email at 10.22am on Wednesday 19 August 2020). In the period between acknowledging the email from Mr Morgan and the Respondents sending their correspondence to the Deputy President no enquiries were made of the Respondents.

14. At paragraphs 19 through to 24 of the AS the Applicant appears to have misunderstood what the Respondents have said in relation to the recusal application. The Respondents do not seek, and have never sought, that the Deputy President recuse himself from determining the recusal application.

15. The Respondents have made submissions that the email sent on behalf of the Deputy President on 19 August 2020 contains statements that would, in the mind of a fair-minded lay observer, give rise to a reasonable apprehension of bias on the basis that the Deputy President has pre-determined both the facts and the law relevant to the application for recusal. This is further conduct that supports the Respondents in their application for recusal generally. They say that the Deputy President ought to make the determination to recuse himself from the substantive matter.

16. In respect of paragraph 24 of the Applicant's Submissions, the Respondents do not agree that the correspondence from the Deputy President was merely strongly worded and was not outside the norms of judicial communication, nor do they agree that the request made by the Respondents for the Deputy President to recuse himself was "extraordinary" or "made in a high handed letter rather than in proper form". The Respondents submit that:

(a) it was entirely appropriate for the Respondents to raise the issue of reasonable apprehension of bias and therefore seek the Deputy President's recusal;

(b) doing so by way of a letter (copied appropriately to the Applicant's representative) was neither extraordinary not high handed. It was consistent with common practice in the Commission and could have been accepted by the Deputy President as a validly made application;

(c) it was also open to the Deputy President to require the application to be made by filing a form, and this is what the Deputy President did. As there was no prescribed form the Deputy President required the application to be made using Form F1. The Respondents duly filed a Form F1. Again there was nothing extraordinary or high-handed about this course.

(d) it should be noted that, on a number of occasions during the course of the matter, including during the course of the recusal application, the Commission has allowed a party to seek orders, for example, extending time for compliance with directions, by correspondence rather than requiring an application in Form F1 to be filed. There was no reason for the Respondents to consider that raising the matter by way of open correspondence to the Commission was either inappropriate or improper. The letter was appropriately respectful in the circumstances.

17. In paragraph 27 of the Applicant's Submissions the Applicant says that the comments made by Mr Morgan "precisely reflect matters which were in evidence". That submission is incorrect for a number of reasons, including:

(a) Firstly, it was never put in issue in the hearing that the Applicant had to seek employment elsewhere. Indeed, the Deputy President's decision in the related dispute matter, which was heard together with this matter, includes a finding that none of the conduct towards the Applicant was disciplinary in nature (and therefore could not place his employment in jeopardy). In those circumstances the Applicant's ability to work for another employer was not relevant and was not put into dispute by either party, notwithstanding a cursory reference to it in his statement. Had that issue been advanced at the hearing the Respondents would have sought to either call evidence or make submission as to the fact that Mr Hanson is a licensed aircraft maintenance engineer and that his licenses relate to aircraft type rather than to specific aircraft only operated by Regional Express. In the circumstances, Mr Hanson will be capable of working as a licensed aircraft maintenance engineer for any employer who operates maintenance of any aircraft type for which Mr Hanson is licensed.

(b) Secondly no evidence has ever been put in the matter that "Mr Hanson's nominated treating doctor will not certify Mr Hanson as fit to return to work unless he has protection of bullying orders". There is no evidence of this in any medical certificate, report or opinion from a treating medical practitioner. Mr Hanson may have said that he needs protection (which is unremarkable given that he is the Applicant in this matter seeking orders to protect him from alleged bullying) but nowhere does he (or anyone else) say that this is a requirement of his doctor to certify him fit to return to work. This assertion is highly prejudicial in nature.

18. The Respondents would also seek to make submissions as to paragraphs 29 to 32 of the AS but are unable to do so in these submissions given the 5 page limit. The Respondents seek to address these matters, and further address the matters outlined in these submissions (and the Respondents' Outline of Submissions dated 24 August 2020) in oral submissions".

[116] On 4 September 2020, REX filed a Form F51, seeking an order requiring Mr Hanson's lawyer to attend the recusal hearing in this matter and give evidence (REX's F51 Application).

[117] REX set out the grounds for its F51 Application, as follows:

"1. The Respondents in the proceeding have made application that Deputy President Boyce recuse himself on the ground of reasonable apprehension of bias (Recusal Application).

2. One of the central matters in the Recusal Application is the content of a telephone conversation that occurred on 14 August 2020 between Mr Sean Morgan (Mr Morgan) and the Associate to the Deputy President.

3. The Applicant was given the opportunity to file materials in response to the Recusal Application. The Applicant did not file a statement from Mr Morgan.

4. The Deputy President has identified a version of the conversation between Mr Morgan and the Associate that is different to the version identified in subsequent communications from Mr Morgan. It is unclear on what basis the Deputy President has identified this version.

5. On 2 September 2020 the Solicitors for the Respondents wrote to Mr Morgan seeking his confirmation of the contents of the conversation to avoid the need for him to attend and give evidence. A copy of this letter is Attachment 1 to the Respondents' Outline of Submissions in Reply dated 4 September 2020 and filed in the Recusal Application (Reply Submissions).

6. On 4 September 2020 Mr Morgan replied to the Solicitors for the Respondents by letter. In his letter Mr Morgan confirmed some of the contents of the conversation. A copy of this letter is Attachment 2 to the Reply Submissions.

7. The Respondents have sought that the Recusal Application be heard.

8. The Respondents seek the attendance of Mr Morgan to give evidence at the hearing of the Recusal Application as to the content of the conversation and subsequent communications".

[118] On 8 September 202, I rejected I rejected REX's F51 Application, by way of the following email to the parties:

The Respondents have sought leave for the Commission to issue an order for Mr Sean Morgan of the ALAEA to attend to give evidence at the hearing of the Respondent's Recusal Application. Having regard to the grounds contained in the Form F51, the Deputy President does not grant leave for this order, and dismisses the Form 51 Application filed by the Respondents on 4 September 2020 in respect of Mr Morgan.

Neither the ALAEA, nor Mr Morgan have filed evidence in these proceedings. The Respondents carry the onus to prove their case as to apprehended bias. Such a case, given that allegations of apprehended bias are serious allegations, ought to have had a clear evidentiary foundation at the time the Recusal Application was first made (albeit in correspondence from Clayton Utz Lawyers dated 19 August 2020, sent 10.22am). On the submissions and evidence filed to date, it is not at all apparent to the Deputy President the basis upon which the Respondent is able to assert that "one of the central matters in the Recusal Application is the content of a telephone conversation that occurred on 14 August 2020 between Mr Sean Morgan and the Associate to the Deputy President". Whatever the content of the conversation between Mr Morgan and the Deputy President's Associate was (or was not), the only relevant content for the purposes of the Respondents' Recusal Application is that information which has been communicated directly to the Deputy President by his Associate. Such content has already been fully disclosed to the parties. Such disclosure was provided to the parties by way of email dated 19 August 2020, and prior to the Respondents' filing their Form F1 Recusal Application.

It is noted that the Commission is unable to determine a matter on the papers absent agreement from the parties. Given there is no such agreement, the Recusal Application will be listed for hearing. A Notice of Listing will be emailed to the parties in due course.

[119] In his oral submissions at the hearing, REX's counsel made the following points (in summary):

(a) REX does not rely upon any issue of 'prejudgement' in advancing its case as to apprehended bias. As REX's counsel stated:

"That's a question of prejudgement. It's not what we're relying on, in the context of this case. We're talking about private communications".[138]

(b) REX does not submit that it was wrong to inquire of the parties' legal representatives as whether Mr Hanson:

(ii) remained on worker's compensation.[139]

(c) The only difference between Mr Hanson's unchallenged evidence during the hearing, as set out at paragraphs [18] to [19] of this decision, and what has been stated by Mr Morgan in his email of 18 August 2020, are the words:

"Mr Hanson's nominating treating doctor will not certify him fit to return to work unless he has the protection of bullying orders".[140]

(d) REX's case as to recusal for apprehended bias is predicated upon the telephone conversation between Mr Hanson's lawyer and my Associate on 14 August 2020.[141] Despite this, REX also submits that the email communication made by Mr Hanson's lawyer on 18 August 2020 was an attempt to "influence the outcome of this proceeding".[142]

(e) It does not matter that the communications with Mr Hanson's lawyer occurred through my Associate. That fact is "irrelevant" and/or "doesn't matter".[143]

(f) Despite the Commission Disclosure setting out what was communicated to me by my Associate, REX says "we just don't know" what was said.[144] The Commission Disclosure simply sets out what I intended to do. To that end, the Commission Disclosure is "irrelevant".[145] Albeit, there is no challenge to the accuracy of the Commission Disclosure.[146]

(g) Case law supports the proposition that a decision-maker is recused as soon as there is a private communication. It is a "golden rule".[147] It follows that the legal principles to be applied in an apprehension of bias case are different when a decision-maker is reserved and where private communications occur.[148] The test in respect of apprehension of bias is that of "reasonable suspicion of bias", not the "real possibility of bias".[149] As I understand it, REX essentially submits that because REX's case as to apprehension of bias rests upon a private communication, the test of "real possibility" set down in Ebner is replaced with the test of "reasonable suspicion".

(h) Whilst I am able to exercise my discretion to hold a hearing in respect of REX's recusal application, it was essentially unnecessary in the circumstances of this case because there had been a private communication. In the circumstances of this case, I could or should have just made a decision recusing myself as soon as I read the email from REX's lawyer, without holding a hearing, and without giving Mr Hanson an opportunity to be heard.[150] Further, there is no need to get back to the substance of the communication had, or all the circumstances of the case, in making my determination as to apprehended bias in this matter.[151]

(i) In assessing the fair-minded and informed lay observer, questions of timing are irrelevant.[152] REX has not been premature in making the Recusal Application. In other words, REX submits that an apprehension of bias was created the moment my Associate contacted Mr Hanson's lawyer. Such apprehension of bias simply cannot be cured or repaired. Everything that occurred post the specific point in 'time' that the apprehension was created is wholly infected by the apprehension. REX, in seeking my recusal, is unarguably entitled to rely upon the exact point in time that it asserts is the time that the apprehension was created.

(j) REX also relies upon an apprehension of bias that is self-evident from the so-called "emphatic language used in [the Commission Disclosure] email of 19 August 2020 at 12:09pm AEST (as set out in paragraph [31] of this decision).[153] Indeed, whether or not REX's lawyer's letter of 19 August 2020 (set out at paragraph [29] of this decision) "in fact does provide a correct statement of the law is, to a large degree, not, that's not to the point".[154]

[120] In her oral submissions at the hearing, Mr Hanson's counsel made the following points (in summary):

(a) Fundamentally, it is not the case that all communications absent a party, at whatever stage in the proceedings, justify recusal. It is not a "drop dead" rule. The approach is one of nuance and balance and context. The nature of the communication, of course, matters.

(b) It is uncontroversial that the conversation between my Associate and Mr Hanson's lawyer was had over the telephone, and did not involve myself. It is equally uncontroversial that I was not present with my Associate when this telephone conversation occurred.

(c) Mr Hanson does not make submissions supporting or opposing the Recusal Application. Rather, Mr Hanson makes submissions in the Recusal Application to assist the Commission from falling into error on the basis of the approach urged upon the Commission by REX. In this regard:

(i) The difficulty with the approach to recusal being advanced by REX is that it asks the Commission to cherry pick conduct, and events at a particular point in time. In doing so, REX seeks to engage in a process whereby it simply dismisses many important contextual factors as irrelevant, or not to the point. Such an approach is completely incorrect.[155]

(ii) It is, however, correct at law to have a decision-maker provide context from himself or herself in a recusal application. This principle has enjoyed application in many Australian cases on the question of recusal. To the extent that the Commission considers any further disclosure is appropriate, it can be done in the reasons for decision.[156]

(iii) REX has repeatedly submitted that it was "four days" between the phone call from my Associate to Mr Hanson's lawyer (on Friday, 14 August 2020), and Mr Hanson's lawyer's reply email (on Tuesday, 18 August 2020). In making this submission, REX fails to highlight to the Commission the important fact that two of the four days were a Saturday and Sunday.[157]

(iv) The speed, noise and excitability in which Clayton Utz lawyers have made the Recusal Application, and the absence of any prior inquiry as to the facts and circumstances surrounding the Lawyer Disclosure, ought not go unnoticed. They are critical matters to be taken into account in terms of overall context. The letter from Clayton Utz lawyers on 19 August 2020, essentially demanding my recusal, may well be the way that certain legal firms engage with the Commission, but such manner of engagement is not appropriate, and is not the way in which a recusal application in any forum should be made. It would be readily apparent to the fair-minded and informed lay observer that, after receipt of the Commission Disclosure, Clayton Utz lawyers had "jumped the gun".[158]

(v) It is not entirely clear whether the letter from Clayton Utz lawyers dated 19 August 2020, seeking my recusal, is a submission or an application. This lack of clarity is a feature of the unsatisfactory and inappropriate nature of the communication by Clayton Utz lawyers. Indeed, it would have been inappropriate for me to have recused myself simply of the basis of this letter, whereby it is essentially said that because a one-sided communication between my associate and a solicitor has occurred, it is "necessary" that I immediately recuse myself.[159]

(vi) Contrary to the submissions of REX, all of the context concerning this Recusal Application needs to be taken into account. Such context would include the inquiry itself, and the nature of the information inquired about. One does not approach this matter essentially on the basis that a one-sided communication has occurred. When one has regard to the nature of the inquiry made, one must readily acknowledge that the information sought in respect of the inquiry does not go to any matter in contest in the proceedings, nor does it go to any critical matter in the proceedings.[160]

(vii) Mr Hanson's evidence (as set out at paragraph [18] to [19] of this decision) was open to be challenged at the hearing, as part of the lengthy cross-examination of Mr Hanson. No such challenge was made by REX. For completeness, Mr Hanson's counsel also noted:

"One final point, just as matter of completeness. Your Honour, in an exchange with my friend, asked if the question of risk, risk that the conduct would recur, was taken at first instance. In the respondent's reply submissions, at, and I appreciate that it's been a fair while between - sorry, Rex's further submissions, of 24 January, does indicate, they did indicate, as when setting out the established principles, that a jurisdictional matter, posed by 789FD was whether a risk to health and safety was created.

Further on, and consistent with their earlier submissions, that repeated conduct was put in issue. But it's never been taken, other than saying that the conduct is perfectly reasonable, that bullying itself does not create a risk, not taken in that sense. That would seem to suggest that it had been averted to.

Significant in the context of this application, only in that it reduces further the already low significance of the communications made by Mr Morgan".[161]

(viii) The making of a recusal application is both significant and serious. It follows that the lawyers making such an application should do so carefully, and be precise about the basis upon which they make such an application. There is an obligation to clarify what has occurred before making such an application. Recusal applications are not a game. One does need to tick all the boxes before making a recusal application. Recusal applications are not something to be exploited for tactical advantage. To the extent that REX and its lawyers have sought to depart from the conventional approach in this Recusal Application, such a departure is "dangerous". This departure from convention, taken by REX and its lawyers in this Recusal Application, has "infected [it's] whole approach, including the tone and tenor ... of [REX's] submissions today".[162]

(ix) In terms of case law concerning recusal, one must consider the facts of each case to determine the context in which findings and observations (or commentary) are made.[163]

(x) In Re JRL,[164] Mason J makes the point of the possibility of 'repair', in that even where there is a procedural misstep or a one-sided conversation, through disclosure or opportunity, it can be fixed.[165] Mr Hanson's counsel submitted that such an approach is to be embraced.[166] Further, in Anderson Group Pty Ltd v Tynan Motors Pty Ltd (Tynan Motors),[167] Young CJ made the observation that,

"Although I do take a serious view of this matter, it may be that it is just a storm in a teacup which, if it were able to be fully investigated, would just pass one by".

Mr Hanson's counsel submitted that "it is difficult to think of a phrase that sums up what [has] happened here more accurately".[168] In this regard, Mr Hanson's counsel pointed out that unlike in Tynan Motors, the one-sided communication in this matter has been fully investigated (and disclosed).

(xi) The fact that something, with the benefit of hindsight, might be identified as having been done more appropriately if done differently, is not enough to justify a recusal application. Recusal applications are made on the basis of reasonableness, not on the basis of perfect hindsight.[169]

[121] In his oral submissions in reply, REX's counsel made the following points (in summary):

(a) The letter from Clayton Utz lawyers dated 19 August 2020 was neither high-handed, nor premature. Rather, it was appropriate correspondence in the circumstances of this case.[170]

(b) REX's case as to recusal in this matter is very much based upon a breach of the "golden rule" (as described in Tynan Motors).[171]

(c) The case of Ebner, to a large degree, doesn't really deal with the proposition of communications with judges. Albeit, paragraph [24] of Ebner does refer to categories of bias. But in any event, REX relies upon paragraph [82] of Ebner going to the underpinnings and appearance of impartiality.[172]

(d) The test, as to apprehended bias 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 he or she is required to decide". On the objective circumstances of this case, REX's Recusal Application should succeed.[173]

[122] REX's Recusal Application in respect of Recusal Issue One suffers from four fatal flaws, which I elaborate upon following.

Fatal Flaw One - REX's abandonment of 'prejudgement'

1. In relation to Recusal Issue One, REX's counsel abandons any reliance upon 'prejudgement' (see paragraph [119(a)] of this decision).[174] As the authorities repeatedly point out, a recusal application based upon apprehended bias requires that 'prejudgement' be the foundation for 'impartiality' (the latter being the whole point to a recusal application based upon apprehended bias).

[124] REX's abandonment of 'prejudgement' (through its counsel at the hearing) is consistent with:

(a) the Clatz Letter, sent on the instructions of REX and the individually named respondents, which does not refer to 'prejudgement', and simply states "the communications between your Associate (on your behalf) and Mr [Hanson's lawyer] give rise to a reasonable apprehension of bias"; and

(b) the written submissions made by REX, including in-reply, which raise no issue as to 'prejudgement' in relation to the communication between my Associate and Mr Hanson's lawyer.[175]

[125] Whilst one might be prepared to essentially cast aside the absence of any express suggestion as to prejudgement in the Clatz Letter and REX's written submissions, and infer that reliance upon prejudgement is basically 'taken as a given' in any recusal application based upon apprehended bias, the unequivocal abandonment of 'prejudgement' by REX's counsel at the hearing removes the ability to do so.

1. In making a case as to apprehended bias, it is elementary that the moving party make out their case on the basis that certain events or conduct give rise to 'prejudgment', which holds a 'logical connection' to the real and reasonable possibility of a departure from impartial decision making.[176]

[127] Absent prejudgement, there is nothing to make a logical connection with, and therefore nothing that can be said to reasonably give rise to a departure from impartial decision making. It follows that I am simply unable to determine a claim of recusal based upon an assertion as to apprehended bias in respect of Recusal Issue One in circumstances where any suggestion as to prejudgement is abandoned by counsel for the moving party.

Fatal Flaw Two - REX's failure to 'apply' Ebner

[128] REX's submissions wholly fail to accept, adopt, or apply the relevant test laid down in Ebner - which, as I have already stated, is the substantive legal authority on the matter. I say this of REX's submissions having had regard to its written materials (i.e. the Form F1 Recusal Application, the Clatz Letter, and REX's written submissions), none of which identify the 'application' of the three-step test set out in Ebner in respect of Recusal Issue One. Further, at no point in his oral submissions did REX's counsel address me on same. Rather, REX merely refers to the 'principle' arising from Ebner.

1. During the course of the hearing, I pressed REX's counsel a number of times, in a number of different ways, as to what appeared to be a fatal flaw or glaring omission in REX's submissions in relation to the application of the three-step test in Ebner.[177] My requests for that clarification went unanswered, other than to the extent that REX submitted that the test set down in Ebner is the test for apprehended bias "generally".[178]

[130] In this regard, I understand REX to have submitted that in this case, because it involves an ex parte communication, the three-step test laid down by the High Court in Ebner does not apply, or only partly applies. That said, REX's counsel has pointed me to no authority that would allow me to depart from the application of the three-step test set out in Ebner.

[131] To the extent that REX submits and/or suggests that I do not need to follow and apply the three-step test set down in Ebner, in whole or in part, or that some other authority should be applied in addition to or in substitution for the application of the three-step test set down in Ebner, in whole or in part, I reject it. In my view, such an approach is erroneous, and as Mr Hanson's counsel points out, could only lead me into error.

Fatal Flaw 3 - REX's lack of precision in relation to the basis upon which it brings its recusal application (i.e. "we just don't know")

[132] At the hearing, REX submitted that its case as to recusal in respect of Recusal Issue One is based upon the telephone conversation between Mr Hanson's lawyer and my Associate on 14 August 2020:

"THE DEPUTY PRESIDENT: So your case is predicated on the conversation between Mr Morgan and my associate, as I understand it.

[133] In its written submissions dated 24 August 2020, REX relevantly submitted as follows:

"9. ... A fair-minded lay observer would, of necessity, infer from Mr Morgan's email sent 18 August 2020, 2.02pm AEST], in the absence of any other evidence of what was said in the conversation, that what was said in the conversation is set out in the numbered paragraphs of Mr Morgan's email ...

10. If the Commission is not minded to accept that the email from Mr Morgan is the best evidence of the content of the conversation between Mr Morgan and the Associate, the Respondents' submit that the appropriate course would be to require Mr Morgan to give evidence as to the conversation and be available for cross-examination by the Respondents."

[134] It is clear from the underlined words of the foregoing submissions that REX's position (at least as at 24 August 2020) is that the Lawyer Disclosure is the "best evidence of the content of the conversation between Mr [Hanson's lawyer] and [my] Associate" and would "of necessity" be accepted as such by the fair-minded and informed lay observer. I concur with this submission.

[135] In written correspondence to Mr Hanson's lawyer on 2 September 2020, REX's lawyer changes tact, and relevantly states:

"2. As you know one of the central matters in the Application is a telephone conversation that occurred between yourself and the Associate to the Deputy President on Thursday 14 August 2020. Our understanding of how that conversation arose and its contents is as follows:

(a) The Associate to the Deputy President telephoned you.

(b) The Associate advised you that the Deputy President had asked him to enquire of you as to two questions:

(i) whether Mr Hanson remained employed by Regional Express; and

(ii) whether Mr Hanson intended to return to work with Regional Express.

(c) In response to those two questions you advised the Associate that:

(i) Mr Hanson remained an employee of Regional Express (Rex) and was still on workers' compensation. Mr Hanson's nominated treating doctor will not certify Mr Hanson as fit to return to work unless he has the protection of bullying orders;

(ii) Mr Hanson only holds licences to certify Rex aircraft and therefore he has to and wants to return to Rex in order to resume his career as a LAME. Mr Hanson could not work as a LAME for any other organisation.

(d) The conversation then ended and there was no request made by the Associate during the conversation for you to follow up or confirm this information in writing."

3. Our understanding of the conversation is consistent with what you set out in your subsequent email to the Associate sent at 2:02 pm on Tuesday 18 August 2020. That email was sent by you to confirm what was said in your conversation.

4. The Respondents have made a submission to the Commission that the contents of the conversation were as set out above in paragraphs numbered 2(a) to 2(d). This is addressed at paragraph 9 of the Respondents' Outline of Submissions dated 24 August 2020".[180]

[136] The emphasised words identify that REX's lawyer, as at 2 September 2020, is asking that Mr Hanson's lawyer confirm that the matters set out in paragraphs 2(a) to (d) of REX's lawyer's correspondence are reflective of the contents of the conversation. It is important to note that REX's lawyer is not asking Mr Hanson's lawyer to confirm that the Lawyer Disclosure is the best evidence of the conversation (as REX previously did on 24 August 2020).

[137] REX's lawyer's letter also wrongly asserts that REX has "made a submission to the Commission that the contents of the conversation were as set out above in paragraphs numbered 2(a) to 2(d)". This is wrong in that the written submissions made to the Commission by REX on 24 August 2020 were that the Lawyer Disclosure is the "best evidence of the content of the conversation between Mr [Hanson's lawyer] and the Associate".

[138] On 4 September 2020, REX stated in its F51 Application:

"The evidence of Mr Morgan will be the best evidence available to the Commission to determine the content of the conversation between Mr Morgan and the Associate on 14 August 2020.

The content of that conversation is a central matter in the Recusal Application".

[139] In reply correspondence from Mr Hanson's lawyer to REX's lawyer on 4 September 2020, Mr Hanson's lawyer accepts that the best evidence (or an "accurate statement") of his conversation with my Associate on 14 August 2020 was as set out in the Lawyer Disclosure. In this regard, Mr Hanson's lawyer relevantly states:

"Nevertheless, it is the case that my email of 14:02 hours, Tuesday 18 August 2020, is an accurate statement of the content of my communications to Boyce DP's associate".

[140] In its written submissions in-reply dated 4 September 2020, REX relevantly submits:

(d) ... The Respondents will seek to examine Mr Morgan and then address the Commission on why the Commission ought to accept that the content of the conversation between Mr Morgan and the Associate on 14 August 2020 was as is set out in paragraph 9 of the Respondents' Outline of Submissions dated 24 August 2020.

(a) the Respondents have identified what they say they believe the content of the conversation between Mr Morgan and the Associate on 14 August 2020 to have been (Respondents' Outline of Submissions paragraph 9);

(b) the Applicant has had the opportunity, in the [Applicant's Submissions], to deny or challenge the Respondents' characterisation of what occurred in that conversation but has chosen not to do so;

(c) the closest that the Applicant gets to engaging with the content of the conversation is at paragraph 15 of the [Applicant's Submissions] where the Applicant says:

"Mr Hanson's solicitor confirmed his response by email, copying Rex's solicitors".

8. The Respondents submit that absent any evidence being given by Mr Morgan the Commission should find that the content of the conversation between Mr Morgan and the Associate on 14 August 2020 was as set out in paragraph 9 of the Respondents' Outline of Submissions. If the Commission is not amendable to that submission, the Commission should order Mr Morgan to give evidence (as requested by the Respondents) in which case the Respondents would then seek the opportunity to make further submissions in light of that evidence.

9. The Respondents have, by their solicitors, written to Mr Morgan seeking his confirmation of the content of the conversation. A copy of this letter is Attachment 1. Mr Morgan replied by letter partially confirming the content of the conversation. A copy of this letter is Attachment 2.

10. The Respondents do not know the basis upon which the Deputy President appears to have made determinations as the content of the conversation between the Associate and Mr Morgan, as set out in the email sent on behalf of the Deputy President to the Solicitors for the Respondent on 19 August 2020. The basis of those apparently determined facts has not been disclosed to the parties, nor can it be tested in any way. It would be unfair and unreasonable for the Commission to rely upon whatever information was used to make those determinations".

1. Despite my having pointed out the inconsistencies and errors in REX's written materials to REX's counsel at the hearing, he wholly resiled from clarifying or correcting REX's position - including correcting what REX's lawyer had represented in his 2 September 2020 correspondence (i.e. about what had been wrongly represented to both Mr Hanson's lawyer, and the Commission). Instead, as the following transcript extract identifies, REX's counsel sought to shield the inconsistency behind the cloak of "we just don't know":[181]

"THE DEPUTY PRESIDENT: Right. But don't your submissions say that you seek to say that the conversation between the associate and Mr Morgan was as set out in his email?

THE DEPUTY PRESIDENT: Don't you press to say that unless that's accepted, you require Mr Morgan for cross-examination?

MR MAHENDRA: No. The problem is, and this is where we don't know the answer to the fundamental question, we don't know what your associate asked of Mr Morgan. We've highlighted this.

THE DEPUTY PRESIDENT: Yes. Because in this letter - if you go to this letter of 2 September, have you go that, to Mr Sean Morgan?

THE DEPUTY PRESIDENT: Then you've got 2(a) to (d), 2(b)(ii), you say:

The conversation, whether Mr Hanson intended to return to work with Regional Express.

Now, you then say, down in - well, your solicitors say, down in paragraph 4:

This is addressed at paragraph 9 of the respondent's outline of submissions.

But I can't see, anywhere, where there was ever a question raised as to whether Mr Hanson intended to return to work. You've asked Mr Morgan to accept 2(a) to (d) and certainly 2(b)(ii) is inconsistent with what's said at paragraph 9 of your submissions.

MR MAHENDRA: I don't understand how that's inconsistent, Deputy President. On what basis do you say - - -

THE DEPUTY PRESIDENT: My question was, is he still employed, 2(b)(i), and is he on workers compensation? Is he off work on workers compensation? There was nothing about his intention to return to work.

MR MAHENDRA: Well, that's where there's a fundamental breakdown between what we - we don't know what was said.

THE DEPUTY PRESIDENT: They're your words and they're inconsistent with your submissions, at paragraph 9. There's nothing - where, in your submissions at paragraph 9, so your submissions of 24 August, I mean this is your error, isn't it, or your inconsistency that your advancing between your submissions and the letter to Mr Morgan? There's nothing in there that advances a proposition that there was a question as to whether any inquiry was made as to Mr Hanson's intention to return to work.

MR MAHENDRA: How is it inconsistent with our submissions, Deputy President? There's nothing in our submissions that mentions ...".[182]

1. The foregoing oral submissions give rise to yet further inconsistency. Indeed, in terms of REX's position, it has travelled from the Lawyer Disclosure as being the best evidence of the conversation between Mr Hanson's lawyer and my Associate on 14 August 2020, to the version of the conversation created and set out in REX's lawyer's correspondence dated 2 September 2020 being the version of the conversation, to Mr Hanson's lawyer's acknowledgement of the Lawyer Disclosure only "partially confirming" the conversation, to "we just don't know" what the conversation was.[183]

[143] Flowing the above, it appears to me that:

(a) whilst REX may not challenge the Commission Disclosure, it seeks to traverse or undermine it collaterally on the basis that there is an alleged inconsistency between what Mr Hanson's lawyer says his conversation with my Associate was, and what I say my Associate conveyed to me post that conversation;[184] and

(b) even though prior to the hearing REX pressed for Mr Hanson's lawyer to concede that the Lawyer Disclosure is the best evidence of his conversation with my Associate, REX now resiles from this and says that the Lawyer Disclosure is not the best evidence of the conversation because it does not know what precise questions were asked of Mr Hanson's lawyer by my Associate (or something to that effect).

[144] There are several difficulties with the shifting sands of REX's position:

(a) Firstly, as stated by REX's counsel at the hearing, REX's Recusal Application in respect of Recusal Issue One is based upon the conversation between Mr Hanson's lawyer and my Associate, not between my Associate and myself;[185]

(b) Secondly, and flowing from the foregoing, REX's submissions do not make any sense. In other words, what Mr Hanson's lawyer discussed with my Associate could never be the same as what my Associate discussed with me (i.e. they are two different conversations). Apart from what is set out in the Lawyer Disclosure, I could never know exactly what was discussed between Mr Hanson's lawyer and my Associate, other than to the extent of what my Associate told me (because I was not present when the conversation occurred). What my Associate said to me is set out in the unchallenged Commission Disclosure.[186] If there be any difference between the two conversations, it is not a question of inconsistency. Rather, the differences arise because they are different conversations, not inconsistent conversations. If REX, for the purposes of its Recusal Application, wants to read the conversations as "inconsistent", that is a matter for REX. I reject the contention.

(c) Thirdly, any lack of clarity or confusion as to the conversation that is said to arise between Mr Hanson's lawyer and my Associate, arises not from the facts, but from REX's inability or unwillingness to be precise and consistent in articulating its own case. Indeed, in seeking to focus upon what might be said are (at their highest) peripheral inconsistencies of no moment, REX has failed to articulate its case as to apprehended bias in the substantive sense. I do not read the authorities on apprehended bias as requiring one to go through a painstaking process of argument and cajoling about facts that are contained in an unchallenged disclosure by a legal representative and/or a decision-maker.

(d) Fourthly, REX's counsel expressly stated at the hearing that REX does not challenge the Commission Disclosure. At no point has REX sought to make any further enquiries of me as to the Commission Disclosure, or seek any further particulars from me in respect of same. The fair-minded and informed lay observer is reasonable, and will not sit on his or her hands in relation to concerns over the contents of a disclosure where clarification can be readily sought and obtained. Rather, the fair-minded and informed lay observer takes the trouble to inform himself or herself of relevant matters so as to obtain knowledge of all the circumstances of the case. It follows that REX is bound to accept the account of the substance of the conversations that occurred between myself and my Associate, as specifically set out in the Commission Disclosure.[187] The assertion or retort that "we just don't know" what was said is fallacious. As the majority stated in Charisteas:[188]

"The onus for establishing a basis for recusal lies with the husband [Applicant for recusal] and his failure to clarify counsel's answers [counsel's disclosure] cannot undermine the integrity of the information [the disclosure] which was given".[189]

1. The lack of precision by REX as to the facts is yet another fatal flaw in REX's Recusal Application. It infects not only REX's case as to the first limb of the test in Ebner (i.e. What is the conduct asserted to give rise to prejudgement and impartiality?), but also means that the second and third limb of Ebner, based upon 'logical connection' and 'reasonableness', collapse. A fair-minded and informed lay observer does not base his or her decision as to apprehended bias on a "vague sense of unease or disquiet".[190] Further, as Basten JA stated in McGovern v Ku-Ring-Gai Council:[191]

" ... it may better be understood as requiring, not merely a vague assertion of suspicion, but "an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits": see Ebner at [8]."[192]

Fatal Flaw 4 - REX's assertion that the Lawyer Disclosure seeks to 'influence' the Commission

1. In its written submissions dated 24 August 2020, REX alleges that essentially all of the matters referred to or contained within the Lawyer Disclosure are "both misleading and prejudicial", "highly prejudicial", "strikingly prejudicial", "should never have been made", and "had they been made either by way of evidence or submission in the proceedings would have been strongly challenged by the Respondents".[193]

[147] At the hearing, REX's counsel retreated from these broad and generalised allegations, and sought to limit the prejudicial content of the Lawyer Disclosure, and/or any alleged inconsistency between the evidence received at the substantive hearing of the Bullying Application, to what was represented from Mr Hanson's nominated treating doctor (Doctor Contention). This is reflected in the following transcript exchange:

"THE DEPUTY PRESIDENT: So just going back, you say the issue is - I mean I suppose I can look at this myself, but I'll get your assistance. The issue is:

Mr Hanson's nominating treating doctor will not certify him fit to return to work unless he has the protection of bullying orders.

Is that the only difference, you say, between the evidence he's already given?

MR MAHENDRA: The content and the effect of - sorry, the content of Mr Morgan's email, insofar as it is inconsistent with the evidence, that's what we rely on. We also - -

THE DEPUTY PRESIDENT: But is that the only aspect you say is inconsistent?

[148] In essence, REX appears to assert that because the Lawyer Disclosure contains a statement to the effect that Mr Hanson's doctor is of the opinion that Mr Hanson will not be fit for work unless he obtains the protections of bullying orders from the Commission, and because such information has been communicated to me:

(a) Mr Hanson's lawyer has sought to influence my determination as to liability and/or relief in respect of the Bullying Application. As I understand it, this so-called "influence" is said to occur because I have been told in the Lawyer Disclosure that Mr Hanson's doctor is of the opinion that Mr Hanson should not go back to work unless he gets bullying orders that protect him, and/or because based upon the receipt of such information by me, I might be sympathetic to Mr Hanson (and thus the fair-minded and informed lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question/s I am required to decide in the Bullying Application); and/or

(b) Further or in the alternative, even if Mr Hanson's lawyer has not sought or intended to influence me in that way, by the mere receipt of such information by me, a fair-minded and informed lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question/s I am required to decide in the Bullying Application.

[149] I reject the foregoing assertions by REX, arising or flowing from the Doctor Contention. In this regard:

(a) I do not accept that there is any basis for me to find that Mr Hanson's lawyer has sought to influence me in the manner, or for the purposes, contended by REX, or at all. In my view, Mr Hanson's lawyer is simply communicating to the Commission what has been told to him by his client.

(b) To the extent that REX says that the Doctor Contention might influence me, irrespective of Mr Hanson's lawyer's intentions, it is not a material issue (in any event) upon which I need to make any determination on in the Bullying Application (in respect of liability or relief). This is so because an issue (such as the Doctor Contention) must be a live and significant issue in the relevant substantive proceedings. As Vice President Hatcher stated in ResMed Ltd v AMWU:[195]

"The authorities suggest instead that the issue about which there is said to be pre-judgment should be a "live and significant issue" in the instant proceedings, or must be "the question involved in" the proceedings" or one that the court or tribunal "has to decide". Certainly an analysis is required of the role which the issue about which the opinion has been expressed will play in the instant proceedings. Although the test for reasonable apprehension of bias is framed in terms of a real (and not remote) possibility, I conclude from the authorities that there will generally not be a real possibility of a reasonable apprehension of bias on the basis of prejudgment of an issue which is of little or no relevance or significance to the present proceedings".[196]

(c) The Doctor Contention is not a live, let alone a significant, issue in the Bullying Application in that:

i. REX made the decision not to challenge Mr Hanson's medical evidence at the substantive hearing. That medical evidence identifies that Mr Hanson has suffered a "psychological injury from bullying and harassment by [REX] management and HR [Human Resources] over a prolonged period."[197]

ii. REX, in opposing the Bullying Application, has not sought to raise any issue in respect of s.789FD(1)(b) of the Act, concerning a "risk to health and safety" arising from the alleged bullying conduct by the Bullying Respondents. Rather, REX simply says (in summary) that any alleged bullying of Mr Hanson did not occur, or if any relevant conduct did occur, it constituted reasonable management action taken in a reasonable manner.

iii. It is not my role, on the state of the evidence tendered in the Bullying Application, and by reference to the contentions and the submissions of the parties arising from the hearing of the Bullying Application, to be basing my determination as to either liability or relief upon Mr Hanson's doctor's opinion. Rather, my role is to determine whether or not bullying has occurred. If I do find that bullying has occurred, I then need to determine what relief (if any) is appropriate. If I find that bullying has not occurred, Mr Hanson's Bullying Application will be dismissed. Given REX has not sought to raise any issue in respect of s.789FD(1)(b) of the Act, the opinion of Mr Hanson's doctor, is not a live or significant issue to be resolved by the Commission.

iv. Contrary to the submissions of REX's counsel, it does not follow simply from me directing my Associate to make the Status Inquiry, that the inquiry itself, or anything arising from same, automatically concerns a live, significant or even material issue to be determined in the substantive Bullying Application proceedings.[198] Issues do not become live, significant or material merely because they are "relevant",[199] or because an inquiry is made at the direction of a decision-maker on an ex parte basis. Rather, focus must be directly had to the actual inquiry that was made, and the response received, in the context of the issues to be decided in the proceedings. In this case, the fair-minded and informed lay observer will take all of the context into account, and resolve the question as to whether the relevant ex parte communication was about a 'substantial' issue/s by reference to the statutory scheme, and the real and live issues to be resolved. In doing so, the fair-minded and informed lay observer will have direct regard to the unchallenged Commission Disclosure and the Lawyer Disclosure.

(d) The Doctor Contention does not give rise to anything particularly new in terms of Mr Hanson's contentions in his Bullying Application, in that:

i. Mr Hanson's counsel submitted prior to the commencement of the substantive hearing of the Bullying Application that Mr Hanson will continue to be subject to workplace bullying at REX "absent the Commission's intervention";[200] and

ii. Mr Hanson's own evidence, unchallenged by REX at the substantive hearing of the Bullying Application, is that he "need[s] to go back to work [but before doing so] he need[s] protection [in the form of bullying orders]".[201]

[150] By reference to the relevant authorities, I have identified four fatal flaws in REX's case as to apprehended bias concerning Recusal Issue One. Whilst any one or more of those fatal flaws is, in my view, sufficient to dismiss Recusal Issue One, I am nonetheless required to apply the three-step test set out in Ebner.

[151] In making REX's case as to Recusal Issue One, REX submitted that:

(a) the fact that I was not personally in contact with Mr Hanson's lawyer on 14 August 2020, and that the contact with Mr Hanson's lawyer on that date was interlayered by my Associate, "is irrelevant";[202]

(b) to the extent that the Commission Disclosure concerns any statement by me as to my intentions, such intentions "are irrelevant";[203]

(c) the fact that the only aspect of the Lawyer Disclosure that is inconsistent with the evidence in the substantive proceedings concerns the Doctor's Contention, "that's irrelevant";[204]

(d) it is only the intention or purpose of the Lawyer Disclosure that is relevant. "Whether or not the communication actually is persuasive or not, whether it does, in fact, sway the course of justice, is irrelevant;"[205]

(e) the fact that there was some utility, in terms of the disposition of the substantive Bullying Application, in me asking my Associate to make the Status Inquiry in respect of Mr Hanson's employment at REX (at the time I did), "in and of itself, doesn't really matter, in the mind of the reasonable lay observer";[206] and

(f) in assessing the fair-minded and informed lay observer, questions of timing are irrelevant.[207] In other words, REX submits that the fair-minded and informed lay observer would assess the question of apprehension of bias in this case only at the exact point in time at which the ex parte communication occurred on 14 August 2020, and not on the basis of anything that occurred thereafter (i.e. the Lawyer Disclosure and the Commission Disclosure are not relevant or otherwise important matters to be taken into account by the fair-minded and informed lay observer).

[152] The foregoing submissions are directly contrary to the authorities set out in this decision (i.e. they misrepresent and/or misapply the law as it concerns the issue of apprehended bias in Australia).

1. The case law is clear that the partial or selective use of factual material by a party who claims apprehended bias is not the approach, at law, to be adopted. For example, in Helow, a Palestinian asylum seeker argued that a Judge was biased on an apprehended basis because the Judge (of Jewish heritage) was in regular receipt of a certain published Jewish journal that, from time to time, contained extreme or anti-Palestinian views. Lord Hope of Craighead identified that the claimant in that case had only provided the court with a "one-sided selection of what had been published", but that the fair-minded and informed lay observer would have taken the time to consider such articles in their wider context, including by reference to other published articles that did not contain such extreme or anti-Palestinian views.[208]

2. The short point is that a claimant alleging apprehended bias should not be advancing a case pursuant to which it seeks to cast aside certain facts as irrelevant or unimportant, being facts that the authorities identify are matters to which the fair-minded and informed lay observer will take into account.[209]

[155] REX's case as to Recusal Issue One is grounded in the contention that because an ex parte communication, initiated by me, occurred between my Associate and Mr Hanson's lawyer, whilst judgement was reserved, and pending imminent publication of my decision, a hypothetical fair-minded and informed lay observer might apprehend that there is the real possibility that I might not bring an impartial mind to the determination of these proceedings.

[156] However, in making the foregoing assertion, REX has failed to articulate, or refused to acknowledge, by reference to applicable case law, the relevant matters to be attributed to the fair-minded and informed lay observer.

[157] In doing so, REX fails to set out the basis upon which any finding as to a 'logical connection' between the conduct it complains of, and its ultimate claim as to apprehended bias, can be made.

[158] It equally follows that REX's case as to apprehended bias also fails to the extent that its overall contentions, individually or combined, can be sustained on a real and/or reasonable basis, such that they give rise to an apprehension that there might be a departure from impartial decision making.

[159] For completeness, in taking REX's case at its highest, I apply the three-step test set down in Ebner as follows:

(i) Step One - It is accepted that REX has satisfied Step One of the test in Ebner in that it might be said to have identified that the ex parte communication between Mr Hanson's lawyer and my Associate might cause a hypothetical fair-minded and informed lay observer to consider that such communication might give rise to an issue/s in these proceedings to be resolved otherwise than on their merits. However, REX has not, by reference to my findings in this decision, satisfied step-one of the test in Ebner concerning the contents of the Lawyer Disclosure and/or its asserted 'intention' to influence me.

(ii) Step Two - REX has failed to demonstrate, as distinct from asserting, how any factors as to apprehended bias in relation to Recusal Issue One are 'logically connected' to the determination of any issue/s in these proceedings impartially (or otherwise than on their merits).

(iii) Step Three - Assuming contrary to Step Two, even if the hypothetical fair-minded and informed lay observer might apprehend some form of relevant factor as to bias going to 'prejudgment', REX has failed to establish that such hypothetical fair-minded and informed lay observer might reasonably conclude that I am unable to deal with or resolve the issues for determination in these proceedings impartially or otherwise than on their merits.

[160] In view of the foregoing, I dismiss REX's Recusal Application as it concerns Recusal Issue One.

[161] In short, REX's contention as to Recusal Issue Two is that the contents of the Commission Disclosure, as it concerns my response to the contention in the Clatz Letter that I recuse myself immediately, gives rise to apprehended bias. In other words, REX asserts that the Commission Disclosure contains some blunt words and/or emphatic language giving rise to an apprehension of bias on the part of the fair-minded and informed lay observer. Essentially, Recusal Issue Two is a bolt-on to Recusal Issue One.

[162] In dealing with Recusal Issue Two, all of the context concerning the allegation of apprehended bias is again of central importance. This includes a proper acknowledgement of the unusual contentions and requests made in the Clatz Letter that were being responded to.

[163] In my view, a fair reading of the Clatz Letter, as it relates to Recusal Issue Two, is as follows:

(a) my Associate engaged in an ex parte communication with Mr Hanson's lawyer, at my direction, whilst judgement is reserved, on Friday, 14 August 2020;

(b) REX's lawyers did not become aware of the ex parte communication until receipt of the Lawyer Disclosure on Tuesday, 18 August 2020;

(c) because my Associate responded to Mr Hanson's lawyer (in the afternoon of Tuesday, 18 August 2020) 'noting' the receipt of the Lawyer Disclosure, it can be inferred that I would not ever be providing REX with the opportunity to respond to the matters set out in the Lawyer Disclosure;

(d) ex parte communications must not occur, especially when judgement is reserved;

(e) what has been done can never be undone, i.e. the fact that the ex parte communication has occurred, at my direction, and whilst judgement is reserved, is enough to give rise to a finding as to apprehension of bias. What occurs in the lead up to, or post, such ex parte communication is either not to the point, or irrelevant;

(f) in view of (a) to (e) above, it is "necessary" that I immediately recuse myself; and

(g) given that a finding as to apprehended bias is essentially a foregone conclusion, giving rise to a "necessity" that I immediately recuse myself, I should immediately send the file back to the President (or the Commission Registry) for reallocation to another member absent any further hearing or submissions on the issue of my recusal, and absent any conferral with Mr Hanson (and his legal representatives).

[164] My response to the Clatz Letter , as contained in the Commission Disclosure, essentially made two points:

(a) If REX is seeking to press an application for recusal based upon apprehended bias, it needs to do so formally. On the face of the Clatz Letter, it is asserted by REX that I simply recuse myself forthwith, without making a disclosure, without giving Mr Hanson's lawyer the opportunity to make a disclosure, and without any further hearing. In rejecting REX's approach in that regard, I fail to understand how the fair-minded and informed lay observer would view the Commission Disclosure as prejudging REX's Recusal Application (in respect of Recusal Issue One). At its highest, my response to the Clatz Letter merely reflects the fact that I determined that any recusal application being pressed by REX would need to be undertaken formally, and that a procedure would then need to be followed to program the matter to determination.

(b) the Clatz Letter, as it concerns an allegation that the law supports its assertion that I "necessarily" and immediately recuse myself, only makes reference to a four-line extract from the decision of Barwick CJ in Re JRL. The extract is far from a complete statement of the law as it concerns apprehended bias, in cases of ex parte communications, or otherwise. In my response, as set out in the Commission Disclosure, I identified from the decision of Mason J in Re JRL that a disclosure from a decision-maker may well dispel a claim as to apprehended bias grounded upon an ex parte communication. Again, I fail to see how the fair-minded and informed lay observer would logically or reasonably form a view as to the existence of apprehended bias based upon a decision-maker responding to a proposition of law, with a counter or alternative proposition of law.

[165] In his oral submissions, REX's counsel appeared to retreat from REX's contentions that the Commission Disclosure, as it concerns my response to the Clatz Letter, was wrong to the extent that it:

(a) directed that a formal application be made by REX in respect of its allegations of apprehended bias; and/or

(b) put forward to REX an alternative proposition of law. As REX's counsel stated:

"MR MAHENDRA: The point I'm making, Deputy President, is this. Whether or not the letter in fact does provide a correct statement of the law is, to a large degree, not - that's not the point. The point is your response used such emphatic language in effectively dismissing the application that had been made. That that, in and of itself, is an objective fact that a reasonable bystander would take into account in assessing whether or not there is a reasonable apprehension of bias."

THE DEPUTY PRESIDENT: Secondly, as [to] it being an appropriate representation of the law, giving rise to a necessity for me to recuse myself.

THE DEPUTY PRESIDENT: But that's what the letter says though.

MR MAHENDRA: So what? That's not what I'm saying. I'm saying - - -".[210]

1. In making this retreat, REX's counsel resorted to the proposition that because the Commission Disclosure uses "emphatic" (or blunt) language,[211] it gives rise to apprehended bias (in the mind of the fair-minded and informed lay observer). I reject this submission as to the use or actual presence of emphatic language in the Commission Disclosure. Indeed, reading the Commission Disclosure as a whole, and having regard to the unusual and inexact nature of the contentions being made by REX that are being responded to, I do not accept that a fair or reasonable reading of the Commission Disclosure supports any of REX's contentions as to predetermination or prejudgement.

2. Further, I am not aware of any case law that supports the generalised propositions being advanced by REX as to Recusal Issue Two. Certainly, the case law relied upon by REX does not support its submissions.[212] Again, it is worthwhile repeating that allegations of apprehended bias are serious, and are not to be acceded to too readily by a decision-maker. Such allegations must be properly scrutinised, and must be considered in their full context. Importantly, as the High Court has said in Bienstein v Bienstein:[213]

"This Court held in Re Keely; Ex parte Ansett Transport Industries that the expression by a judge of tentative views during the course of argument as to matters on which the parties are permitted to address full argument manifests no partiality or bias. This approach has been confirmed and applied in many cases."[214]

[168] REX had every opportunity to put its arguments as to apprehended bias and my recusal at the hearing on 27 October 2020. It was a hearing that REX requested occur. At that hearing, REX addressed me on its case orally, as a follow-up to the written submissions it had previously filed. REX may make an assertion as to prejudgement based upon the wording contained in the Commission Disclosure, but in doing so it cannot simply choose to ignore the events that have happened in terms of its ability to fully present its case, both in writing and orally.

[169] If REX is disgruntled:

(a) that I did not recuse myself immediately on the basis of the Clatz Letter, and instead set down a conventional hearing to properly ventilate the Recusal Application; and/or

(b) did not welcome with open arms the matters as to fact and law that it was asserted in the Clatz Letter as supporting its case as to recusal;

these are not matters that give rise to apprehended bias, or findings as to prejudgement and impartiality. The fair-minded and informed lay observer may not be a lawyer, but he/she knows common place things, and has at least a basic understanding that an informal and/or poorly articulated application, made under the cover of a lawyer's letter, will not ordinarily be accepted (on face value) by a decision-maker.

[170] I apply the three-step test set down in Ebner in respect of Recusal Issue Two, as follows:

(i) Step One - REX has not satisfied Step One of the test in Ebner in that it has not identified the basis upon which the contents of the Commission Disclosure, as it replies to the contentions made in the Clatz Letter, might cause a hypothetical fair-minded and informed lay observer to consider that such communication might give rise to REX's Recusal Application being resolved otherwise than on its merits.

(ii) Step Two - Assuming contrary to Step One, even if REX was able to relevantly identify the basis upon which a hypothetical fair-minded and informed lay observer might consider that there is an issue (in respect of Recusal Issue Two) giving rise to REX's Recusal Application being resolved otherwise than on its merits, REX has failed to demonstrate, as distinct from asserting, how any such matters are 'logically connected' to the determination of any issue/s in REX's Recusal Application impartially (or otherwise than on their merits).

(iii) Step Three - Assuming contrary to Steps One and Two, even if the hypothetical fair-minded and informed lay observer might apprehend some form of relevant factor as to bias going to 'prejudgment' in respect of REX's Recusal Application, REX has failed to establish that such hypothetical fair-minded and informed lay observer might reasonably conclude that I am unable to deal with or resolve the issues for determination in this Recusal Application otherwise than on their merits.

[171] In view of the foregoing, I dismiss REX's Recusal Application as it concerns Recusal Issue Two.

1. Given that Mr Hanson's counsel drew attention in her oral submissions to the "tone and tenor" of REX's counsel's submissions at the hearing,[215] and the speed, noise and excitability of the manner in which REX's lawyers have sought to pursue REX's Recusal Application (from the very beginning),[216] I consider it appropriate that I make some short observations in this regard.

2. In considering the exchanges between a decision-maker and counsel at a hearing, one must look at the whole of the transcript, rather than taking particular exchanges or sentences in isolation. Further, exchanges on transcript are to be taken from the perspective that the decision-maker has already read the submissions of the parties, and the relevant evidence or other documents, filed prior to the hearing commencing.[217] Such exchanges should also be considered by assessing (listening to) the audio record of the hearing.[218]

3. Having reviewed the transcript of the hearing on 27 October 2020, I note that it is replete with statements by REX's counsel to the effect that: I am entitled to make my submissions, let or allow me to make my submissions, let me finish my submissions, I am being interrupted, and you are not listening to me.[219] A specific exchange in this regard was as follows:

"MR MAHENDRA: Deputy President, let me finish. It's abundantly clear, from your correspondence. What I'm going to do is I'm going to go through my submissions. I'm going to deal with each of the points I want to raise. I'd like to finish those submissions and I can see, from this exchange, that you're against me. If that is the case, so be it, we'll deal with it. But I'm entitled to finish my submissions. I'll make the points I wish to make, I'll highlight the passages that I wish to highlight and you can write your decision.

THE DEPUTY PRESIDENT: But I think - I don't really accept the proposition you're putting. At the Bar there's a difference between being fearless and being foolish and there's also - I suppose the concern I have is that the way that you're approaching the case and your tone, you're seeking to milk a penalty, aren't you, in the rugby league, sense, which - - -

THE DEPUTY PRESIDENT: We're getting into professional foul type territory.

MR MAHENDRA: I'm trying to advance my client's case, as best as I can, in circumstances where I'm constantly being interrupted. You're not willing to listen to me when I wish to take you to the relevant principles that I wish to take you to.

THE DEPUTY PRESIDENT: I am, but I sort of had this concern from your submissions, that the law that you're putting to me is based around this golden rule principle.

THE DEPUTY PRESIDENT: And I'm saying I resist that and I don't see how the authorities support that. I made it clear, in my email [Commission Disclosure], that the case you sent me is not the facts of this case and I made it clear to you that what I considered - the extract that was provided was a gloss on the law."[220]

[175] My analogy of "milking a penalty" in the foregoing exchange is a reference to football or rugby league terminology, whereby a player seeks to intentionally obstruct the run of play, feign injury, or otherwise call foul, in an attempt to garner a penalty. At the point in the hearing that the foregoing exchange occurred, it was becoming increasingly apparent to me, given the number of times assertions were being repeated as to me interrupting, not listening, or otherwise not letting REX's counsel finish his submissions, that these statements were being made simply for the purpose of having them reflected in the transcript of the hearing.

1. In preparing these reasons, I have taken the time to listen to and assess the audio file of the hearing on 27 October 2020. That audio file, in my assessment, identifies that on various occasions, many of the statements reflected on transcript,[221] were made by REX's counsel in a high-pitched voice and patronising tone, whilst other exchanges appear to reflect a predisposition not to engage with, or otherwise provide clarification on, issues raised by me.[222]

2. The tentative views of a decision-maker, asking for clarification, putting alternative propositions to counsel, and/or raising or expressing doubts designed to query submissions made as to the facts or the law, so as to elicit further more relevant submissions on the issues to be decided, will not create an apprehension of bias under the three-step test in Ebner.[223] Indeed, decision-makers should not sit silent through a hearing, as such silence can in and of itself amount to a denial of procedural fairness. Further, impatience, irritation, sarcasm or rudeness, in and of themselves, are unlikely to be of such a nature that the three-step test in Ebner will be satisfied.[224]

[178] To the extent that the conduct of the hearing might be said to breach the fair hearing rule, or to the extent that exchanges between myself and REX's counsel might be advanced as yet a further bolt-on recusal claim or application, I would reject them. Having reviewed the transcript, and listened to the audio file, in my view, the exchanges between REX's counsel and myself go no further than exchanges concerning relevant inquiries or clarifications. The fact that REX's counsel sought to respond to these inquiries by repeatedly making overtly transparent statements on transcript as to so-called 'interruptions' is of no particular concern to me, but I do consider it is appropriate to highlight and draw direct attention to same in this decision. In the context of the contentions being advanced by REX in this case as to the law, it is hardly surprising that I sought clarification from REX's counsel at the hearing on REX's submissions.

[179] For the reasons set out in this decision, REX's Recusal Application is dismissed. An order to that effect will be published in due course.

Mr D Mahendra (of counsel), instructed by Mr D Trindade of Clayton Utz lawyers, appeared with permission for the Respondent.

Ms L Saunders (of counsel), instructed by Mr S Morgan, lawyer, of the Australian Licensed Aircraft Engineers Association (ALAEA), appeared with permission for the Applicant.

1. [1] I note that REX brings this Recusal Application on behalf of itself and on behalf of the individually named respondents Mr Mark Burgess, Ms Maree Penglis, and Mr Png Yeow Tat. (Form F1, 20 August 2020, Item 1.1). Where I refer to "REX" in this decision, I include all respondents unless stated otherwise.
2. [2] Permission for each party to be legally represented was determined in The Australian Licensed Aircraft Engineers' Association v Regional Express Holdings [2020] FWC 3988, at [3]. Legal representation was not opposed by either party.
3. [3] [2020] FWC 3988.
4. [4] Ibid, at [21]-[22].
5. [5] Applicant's Submissions on Evidence, 19 December 2019, at [2].
6. [6] Exhibit R9, Annexure "MB-6", p.344 (definition of "Just Culture" as at October 2018).
7. [7] Exhibit A13, email from Lim Kim Ha to Joanne Patrick, Chris Hine, and John Sharp, 30 June 2019, at 3.10am, Subject "RE: Stephen Hanson - Further Bullying Conduct".
8. [8] Section 789FD(2) of the Fair Work Act 2009.
9. [9] Note, for example, Transcript, 27 October 2020, at PN469 to PN473.
10. [10] Exhibit A1, at [118]-[199]; As to this evidence being "unchallenged" by REX in the proceedings, see Transcript, 27 October 2020, at PN457 to PN472.
11. [11] Exhibit A1, Annexure "SH-26-1" (pp.70-84), see also Annexures "SH26-2", "SH-26-3" (pp.85-93).
12. [12] Transcript, 27 October 2020, at PN439; PN442. This does not mean that questions of apprehended bias can only be raised where they concern an issue of liability in a proceeding: Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568.
13. [13] Section 789FD(1)(b) of the Fair Work Act 2009. Transcript, 27 October 2020, at PN469 to PN473. REX's position is that the alleged bullying did not occur, and if it did occur, the conduct engaged in by the named individual respondents was nonetheless reasonable management action carried out in a reasonable manner (cf: s.789FD(2) of the Fair Work Act 2009).
14. [14] I refer to the 18 August 2020 email from Mr Morgan as the 'Lawyer Disclosure' in that it is a disclosure by a lawyer (Mr Morgan) to REX and the Bullying Respondents. It reflects Mr Morgan's understanding and recollection of his conversation with my Associate on 14 August 2020.
15. [15] Transcript, 27 October 2020, PN386.
16. [16] Whilst Clayton Utz Lawyers are often abbreviated to "Clutz", I consider the abbreviation somewhat unfortunate, and have therefore used the abbreviation "Clatz".
17. [17] Transcript, 27 October 2020, PN629 to PN638.
18. [18]Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, at [19]-[23]; Honda Australia Motorcycle v Johnstone [2005] VSC 387; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, at 352; Attorney General of New South Wales v Lucy Klewer [2003] NSWCA 295; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272.
19. [19] [1999] VSCA 35; [1999] 2 VR 573.
20. [20] Ibid, at [89(e)].
21. [21][1986] HCA 39; (1986) 161 CLR 342.
22. [22]Ibid, at 352; see also Wilson J at 359-360.
23. [23] [2000] HCA 48; 201 CLR 488.
24. [24] Ibid at [45].
25. [25] [2006] HCA 2; (2006) 224 ALR 51.
26. [26] Ibid, at [34]-[35].
27. [27][2000] HCA 63; (2000) 205 CLR 337.
28. [28] Ibid, at 344 to 345, [6] to [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
29. [29] Justice of the High Court of Australia (1996-2009); President of the New South Wales Court of Appeal (1984-1996); Chairman of the Australian Law Reform Commission (1975-1984); Rapporteur, Judicial Integrity Group of the United Nations Office on Drugs and Crime (UNODC) (2000-2014).
30. [30] Hon. Michael Kirby AC CMG, Judicial Recusal: Differentiating Judicial Impartiality and Judicial Independence, British Journal of American Legal Studies, Volume 4, Spring 2015, pp.1-18. Citation: 4 Br. J. Am. Leg. Studies (2015).
31. [31]Ibid, at 344 to 345, [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
32. [32] Ibid.
33. [33] [2015] HCA 20; (2015) 255 CLR 135
34. [34]Ibid, per Gageler, at [59].
35. [35] (2001) 205 CLR 507.
36. [36]Ibid, per Hayne J, at 564, [185].
37. [37] [2019] HCA 50; (2019) 94 ALJR 140.
38. [38] Ibid, at [21].
39. [39] Antoun v R (2006) ALJR 497; [2006] HCA 2, at [82] per Callinan J (to which Heydon J concurred, at [91]).
40. [40] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, at 348-349, [24]; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 71, [74]).
41. [41] (2011) 244 CLR 425.
42. [42] Ibid, at [31]-[32].
43. [43] [2019] HCA 50; (2019) 94 ALJR 140.
44. [44] See, for example, Transcript, 27 October 2019, PN35.
45. [45] Arising from Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, at 344, [6]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140 at [132], per Eldelman J.
46. [46] Transcript, 27 October 2019, PN35.
47. [47]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.

[48] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427, at [33].

1. [49]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531-532, [71]-[72], per Gleeson CJ and Gummow J.
2. [50]Young v Judge Nixon [2008] VSCA 5; Gascor v Ellicott [1997] 1 VR 332; Hodgson v County Court of Victoria [2004] VSC 501; Webb & Hay v R (1994) 181 CLR 41; [1994] HCA 30; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Johnson v Johnson (2000) 201 CLR 488; AJH Layers v Careri [2011] VSCA 425; (2011) 34 VR 236, [20].
3. [51]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [71].
4. [52] Ibid, at 532, [72].
5. [53] [1983] HCA 17; (1983) 151 CLR 288.
6. [54] Ibid, at 294.
7. [55] [1999] EWCA Civ 3004; [2000] QB 451.
8. [56] Ibid, at [21].
9. [57] (2000) 201 CLR 488, at 509, [53].
10. [58][2002] HCA 51; (2002) 210 CLR 438.
11. [59]Ibid, at 447.
12. [60]Young v Judge Nixon [2008] VSCA 5; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; AJH Layers v Careri [2011] VSCA 425; (2011) 34 VR 236, [22].
13. [61]Gascor v Ellicott [1997] 1 VR 332.
14. [62]R v Nicholas (2000) 1 VR 356; [2000] VSCA 49; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Frugtniet v DPP, Unreported, VSC, 15 April 1996.
15. [63][2011] HCA 48; (2011) 244 CLR 427.
16. [64]Ibid, at [63].
17. [65]BA LLB (Hons), PhD, Senior Lecturer, Faculty of Law, Monash University, Australia. Dr Groves is currently the Professor of Public Law at the Law School of La Trobe University.
18. [66]Dr Matthew Groves, Public Statements by Judges and the Bias Rule (2014), Monash University Law Review, Vol 40, No 1, 2014: 115-147, at 120.
19. [67] [2016] FWCFB 916.
20. [68] Ibid, at [30]-[32]. See also: United Voice v Broadspectrum (Australia) Pty Ltd [2017] FWCFB 871.
21. [69] Re JRL [1986] HCA 39; (1986) 161 CLR 342 at 346, 349 to 352; The Anderson Group Pty Ltd v Tynan Motors Pty Ltd [2006] NSWCA 22; 65 NSWLR 400 at [16] to [17], [140] to [146]; Haldane v Chegwidden (1986) 41 SASR 546 at 554 to 555, 559 to 564; The City of St Kilda v Evindon Pty Ltd [1990] VicRp 67; [1990] VR 771 at 774 to 778.
22. [70] The Anderson Group Pty Ltd v Tynan Motors Pty Ltd [2006] NSWCA 22; 65 NSWLR 400 at 405, [17].
23. [71] Re JRL [1986] HCA 39; (1986) 161 CLR 342 at 350.
24. [72] [2006] NSWCA 22; 65 NSWLR 400 at [16] to [17], [140] to [146].
25. [73] Ibid, at 417, [146].
26. [74] Ibid, at 401, point 0.6 of page, Basten JA, Young CJ in Eq, and Santow JA agreeing; 404-405, [16]; 416, [139].
27. [75] Ibid, at [146].
28. [76] Ibid, at 417, [146].
29. [77] Re JRL [1986] HCA 39; (1986) 161 CLR 342 at 346, 349 to 352.
30. [78] Ibid, at 351.
31. [79] Ibid, at 345 to 346.
32. [80] Ibid, at 347, 349 and 351.
33. [81] Ibid, at 356 to 357.
34. [82] Ibid, at 357.
35. [83] Ibid, at 355.
36. [84] [2008] NSWSC 540, at [47] to [53].
37. [85] [2020] FamCAFC 162, at [177]. "In this respect, the circumstances of this case can be distinguished from Lilydale and JRL as in both those cases, the judge was in private contact with a key witness, neither of whom was subject to the same professional obligations which apply to counsel." In this case, Mr Hanson's lawyer is subject to the professional obligations that apply to a lawyer, and the communication with Mr Hanson's lawyer was had between my Associate and Mr Hanson's lawyer (not myself as decision-maker). It goes without saying that the fact that I directed my Associate to communicate with Mr Hanson's lawyer on my behalf cannot alter the actual facts as to the manner in which the actual communication occurred.
38. [86] (1986) 41 SASR 546 at 554 to 555, 559 to 564.
39. [87] [1990] VicRp 67; [1990] VR 771 at 774 to 778.
40. [88] [2013] FCAFC 80.
41. [89] Ibid, at [99] per Robertson J.
42. [90]Honda Australia Motorcycle v Johnstone [2005] VSC 387; Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70; Victoria v Psaila [1999] VSCA 193.
43. [91]See, for example, Johnson v Johnson (2000) 201 CLR 488, per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ at [13], and per Kirby J at [53]; British American Tobacco (2011) 242 CLR 283, per French CJ at [47]-[48], and per Heydon, Kiefel and Bell JJ at [144]; Isbester v Knox City Council [2015] HCA 20, per Kiefel, Bell, Keane and Nettle JJ at [20] and [23], per Gageler J at [57].
44. [92]Akers v Kirkland [2019] EWHC 2176 (citing Locabail v Bayfield Properties [1999] EWCA Civ 3004; [2000] QB 451).
45. [93]Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, at [76].
46. [94]Public Statements by Judges and the Bias Rule (2014), Groves M, Monash University Law Review, Vol 40, No 1, 2014: 115-147, at 120.
47. [95] (2000) 201 CLR 488, at [53].
48. [96][2008] UKHL 62; [2008] 1 WLR 2416.
49. [97] [2008] UKHL 62; [2008] 1 WLR 2416, at 2418, [2] to [3].
50. [98] [2015] HCA 20.
51. [99] Ibid, at [23].
52. [100] [2020] FCA 1570.
53. [101] Ibid, at [8].
54. [102] (2011) 244 CLR 425.
55. [103] Ibid, at [31]-[32].
56. [104] Ibester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135, at [23] (per Kiefel, Bell, Keane and Nettle JJ).
57. [105] [2020] FCAFC 42, at [21].
58. [106] Johnson v Johnson (2000) 201 CLR 488, at [14].
59. [107] Ibid, at [12].
60. [108] Ibid, at [53]; Helow v Home Secretary [2008] UKHL 62; [2008] 1 WLR 2416, at 2418 [2], 2421 [14], 2427 [39].
61. [109] Ibid.
62. [110] Ibid.
63. [111] Ibid.
64. [112] Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at 293-294; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, at 355, 359, 368, 371-372; Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, at 87-88, and 95.
65. [113] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, at [37]. In this case, the Mason CJ and Brennan J attributed knowledge to the fair-minded and informed lay observer that included the circumstances that led to the bringing of the proceedings and the fact that the legal effect of the defences filed would not amount to an admission or belief.
66. [114] In McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504, at 507, [6], Spigelman CJ stressed that relevant statutory provisions must be part of a fair-minded and informed lay observers considerations from the very outset, and not merely some form of qualification at the end of such an assessment. See also, Ibester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135, at [23] (per Kiefel, Bell, Keane and Nettle JJ); Greyhound Racing NSW [2006] NSWCA 333, unreported, Beazley, Hodgson and Basten JJA, 27 November 2006, at [111].
67. [115] [2020] FamCAFC 162.
68. [116] Ibid, at [171].
69. [117] Johnson v Johnson (2000) 201 CLR 488, at [12], citing Vakauta v Kelly (1988) 13 NSWLR 502, at 527, adopted in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, at 584-585.
70. [118] Helow v Home Secretary [2008] UKHL 62; [2008] 1 WLR 2416, at 2422 [23]. See also Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016 332 ALR 128, at [232]; Charisteas v Charisteas [2020] FamCAFC 162, at [176].
71. [119] Charisteas v Charisteas [2020] FamCAFC 162, at [139] to [144], per Strictland and Ryan JJ. Whilst special leave to appeal has been granted by the High Court in respect of this decision, with a hearing likely to occur sometime in 2021, the aspect of the judgement relied upon by Strictland and Ryan JJ is grounded in the decision of Brereton J in Carbotech-Australia Pty Ltd and Anor v Yates & 14 Ors [2008] NSWSC 540, at [52] (the latter as referred to in Construction, Forestry, Mining and Energy Union v LCR Group Pty Ltd [2016] FWCFB 916, at [30], citing John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34).
72. [120] Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] QB 451, at [64].
73. [121] See, for example, Dovade Pty Ltd v Westpac Banking Corporation [1999] NSWCA 113; (1999) 46 NSWLR 168; (1999) 150 FLR 336, at [104]-[108]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, at [70] and [171] .
74. [122] Johnson v Johnson [2000] HCA 48; 201 CLR 488, at [45].
75. [123] Helow v Home Secretary [2008] UKHL 62; [2008] 1 WLR 2416, at [39].

[124] Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] QB 451, at [63] and [67].

1. [125] c.f. Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, at the second last sentence of paragraph [7]. See also, Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] QB 451, at [26] and [58].
2. [126] Charisteas v Charisteas [2020] FamCAFC 162, at [174], per Strictland and Ryan JJ, citing Whalebone v Auto Panel Beaters & Radiators Pty Ltd (In liq) & Ors [2011] NSWCA 176, at [23].
3. [127] Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] QB 451, 480, [25].
4. [128] Ibid, at 481, [26].
5. [129] See, for example, Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, at 372; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, at 572 and 577; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, at 53, 91 to 92 (cf: 62 and 79). See also Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193; (2008) 21 VR 29, at [37] to [39].
6. [130] [2020] FamCAFC 162.
7. [131] Ibid, at [178].
8. [132] See Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242; [2007] 1 WLR 370, at [30].
9. [133] Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] QB 451, at [18] to [19], [51] and [55].
10. [134] [2020] FCA 1890.
11. [135] Ibid, at [62]-[63].
12. [136] Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 436; Wentworth v Graham [2003] NSWCA 240.
13. [137] See paragraphs [132] to [145] of this decision.
14. [138] Transcript, 27 October 2020, at PN571.
15. [139] Transcript, 27 October 2020, at PN258 to PN263.
16. [140] Transcript, 27 October 2020, at PN406 to PN411; PN431 to PN437.
17. [141] Transcript, 27 October 2020, at PN425 to PN426.
18. [142] Transcript, 27 October 2020, at PN31; PN173; PN339; PN413; PN448; PN660.
19. [143] Transcript, 27 October 2020, at PN62 to PN69.
20. [144] Transcript, 27 October 2020, at PN70 to PN87; PN229.
21. [145] Transcript, 27 October 2020, at PN231.
22. [146] Transcript, 27 October 2020, at PN85.
23. [147] Transcript, 27 October 2020, at PN238 to PN251; PN362-PN363.
24. [148] Transcript, 27 October 2020, at PN15 to PN18; PN35.
25. [149] Transcript, 27 October 2020, at PN165 to PN168; PN344 to PN347.
26. [150] Transcript, 27 October 2020, at PN217.
27. [151] Transcript, 27 October 2020, at PN183 to PN191; PN499.
28. [152] Transcript, 27 October 2020, at PN599 to PN600; PN610; PN612; PN636.
29. [153] Transcript, 27 October 2020, at PN541; PN616; PN642; PN644; PN647.
30. [154] Transcript, 27 October 2020, at PN554.
31. [155] Transcript, 27 October 2020, at PN685.
32. [156] Transcript, 27 October 2020, at PN686 to PN687; PN719.
33. [157] Transcript, 27 October 2020, at PN688 to PN689.
34. [158] Transcript, 27 October 2020, at PN693; PN721; PN725.
35. [159] Ibid.
36. [160] Transcript, 27 October 2020, at PN695 to PN699.
37. [161] Transcript, 27 October 2020, at PN734 to PN736.
38. [162] Transcript, 27 October 2020, at PN700 to PN703.
39. [163] Transcript, 27 October 2020, at PN711.
40. [164] [1986] HCA 39; (1986) 161 CLR 342.
41. [165] Ibid, at 351.
42. [166] Transcript, 27 October 2020, at PN712.
43. [167] (2006) NSWLR 400.
44. [168] Transcript, 27 October 2020, at PN718.
45. [169] Transcript, 27 October 2020, at PN720 to PN721.
46. [170] Transcript, 27 October 2020, at PN740.
47. [171] Transcript, 27 October 2020, at PN741 to PN745.
48. [172] Transcript, 27 October 2020, at PN746 to PN747.
49. [173] Transcript, 27 October 2020, at PN748 to PN749.
50. [174] See also Transcript, 27 October 2020, at PN743 to PN745.
51. [175] The reference to prejudgement in REX's submissions is only raised in relation to the Commission Disclosure, as it responds to the assertions made in the Clatz Letter.
52. [176] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427, at [63].
53. [177] Transcript, 27 October 2020, PN35; PN493; PN660; PNM746.
54. [178] Transcript, 27 October 2020, PN35.
55. [179] Transcript, 27 October 2020, PN425 to PN426.
56. [180] A copy of the correspondence from REX's lawyer to Mr Hanson's lawyer dated 2 September 2020 forms Attachment 1 to the Form F51 request filed by REX on 4 September 2020.
57. [181] Transcript, 27 October 2020, PN117.
58. [182] Transcript, 27 October 2020, at PN104 to PN119.
59. [183] See especially at Transcript, 27 October 2020, at PN61 to PN107; PN274 TO PN295.
60. [184] Transcript, 27 October 2020, PN73; PN79, PN81.
61. [185] Transcript, 27 October 2020, at PN425 to PN426.
62. [186] Note paragraphs [31] to [34] of this decision.
63. [187] The position is not different to an admission as to a fact, made in civil proceedings before a court, that requires leave to subsequently depart from.
64. [188] [2020] FamCAFC 162.
65. [189] Ibid, at [178].
66. [190] Jones v Australian Competition and Consumer Commission [2002] FCA 1054, at [100], per Weinberg J.
67. [191] [2008] NSWCA 209; (2008) 72 NSWLR 504.
68. [192] Ibid, at 525, [106].
69. [193] REX does not outline or otherwise articulate what such evidence would go to, or identify a relevant witness that it would be relying upon to give such evidence. In making assertions such as "if we had known we would have brought evidence", the party making such an assertion needs to outline and/or specify what such evidence concerns. A failure to do so undermines the credibility of the assertion.
70. [194] Transcript, 27 October 2020, PN406 to PN411.
71. [195] [2015] FWC 4007 (Appeal dismissed in ResMed Ltd v AMWU [2015] FCAFC 106; (2015) 232 FCR 152).
72. [196] Ibid, at [8].
73. [197] See extract at paragraph [19] of this decision.
74. [198] Transcript, 27 October 2020, PN522.
75. [199] Whilst an issue in a proceeding may be "relevant", it does not follow that such an issue is a live, significant or material issue in proceedings. For example, in this case, REX has never sought to challenge the relevant issue that if bullying has occurred, it poses a risk to Mr Hanson's health and safety.
76. [200] See extract at paragraph [11] of this decision.
77. [201] See extract at paragraph [18] of this decision.
78. [202] Transcript, 27 October 2020, PN69.
79. [203] Transcript, 27 October 2020, PN164, PN231, PN316, PN387, PN524.
80. [204] Transcript, 27 October 2020, PN413.
81. [205] Transcript, 27 October 2020, PN478.
82. [206] Transcript, 27 October 2020, PN499 (note PN505 concerning REX's counsel's concession that the Status Inquiry was, of itself, a valid inquiry to make).
83. [207] Transcript, 27 October 2020, at PN599 to PN600; PN610; PN612; PN636.
84. [208] Helow v Home Secretary [2008] UKHL 62; [2008] 1 WLR 2416, at [6].
85. [209] Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438, at 447.
86. [210] Transcript, 27 October 2020, PN601 to PN604.
87. [211] Transcript, 27 October 2020, PN541; PN554; PN584; PN596 to PN598.
88. [212] Kwan v Kang [2003] NSWCA 336 at [55], [69], [95] to [97]; Anton v The Queen (2006) 80 ALJR 497; [2006] HCA 2 at [27], [29] to [33], [36] to [37], [56].
89. [213] (2003) 195 ALR 225.
90. [214] Ibid, at [34].
91. [215] Transcript, 27 October 2020, PN700.
92. [216] Transcript, 27 October 2020, PN693, PN721 and PN725.
93. [217] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.
94. [218] Sharma v Minister for Immigration and Border Protection [2017] FCAFC 227.
95. [219] Transcript, 27 October 2020, PN18; PN22; PN43; PN75; PN121; PN227; PN353; PN355; PN357 to PN364.
96. [220] Transcript, 27 October 2020, PN357 to PN364.
97. [221] Transcript, 27 October 2020, PN18; PN22; PN43; PN75; PN121; PN227; PN353; PN355; PN357 to PN364.
98. [222] Audio file of hearing on 27 October 2020, at 8.30 minutes to 9.16 minutes; 17.44 minutes to 17.50 minutes; 24.40 minutes to 27.00 minutes; 31.00 minutes to 33.30 minutes; 37.00 minutes to 38.30 minutes; 52.00 minutes to 55.00 minutes.
99. [223] Vakauta v Kelly (189) [1989] HCA 44; 167 CLR 568, at 571; Anderson v National Australia Bank [2007] VSCA 172, at [81]
100. [224] Galea v Galea (1990) NSWLR 263, at 281; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; [2003] 131 FCR 102.

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