Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2023] FWC 878 of Commissioner P Ryan at Sydney on 13 April 2023 in matter number C2023/1371

[1] Captain Lucas has appealed against a decision made by Commissioner Ryan on 13 April 2023[1] in which the Commissioner rejected Captain Lucas' application for him to recuse himself from further dealing with matter C2023/1371 on the grounds of actual and apprehended bias. Permission is required for the appeal under s 604(1) of the Fair Work Act 2009 (Cth) (FW Act). For the reasons which follow, we have decided that permission to appeal should be refused.

[2] Captain Lucas is the President of the Australian and International Pilots' Association (AIPA). His recusal application arose from the following circumstances. On 25 October 2022, Captain Lucas filed an application under s 739 of the FW Act (matter C2022/7094) for the Commission to deal with a dispute with Qantas Airways Limited (Qantas) in accordance with the dispute resolution procedure in clause 47 of the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020[2] (Agreement). The dispute was said to concern whether Qantas had the capacity to allocate Second Officers under Training (SOTs) to its A380 aircraft under clause 19.1.2 of the Agreement. The matter was allocated to Commissioner Ryan. After the dispute could not be resolved by conciliation, three questions for arbitration were determined and the matter was listed for hearing on 14-16 March 2023.

[3] Pursuant to directions made by the Commissioner, Captain Lucas filed his evidence and submissions on 16 January 2023. Two of the witness statements filed by Captain Lucas made reference to an advice obtained by the AIPA from senior counsel in respect of the dispute. For relevant purposes, this evidence firstly adverted (albeit briefly) to the content of the advice and secondly explained how the advice had been acted upon by the AIPA's Committee of Management. The filing of this evidence initially caused Qantas to apply for an order for the production of the legal advice. However, at the commencement of the hearing on 14 March 2023, Qantas abandoned this application and instead pressed an application as to the admissibility of the filed evidence concerning the advice. In response to this, the Commissioner struck out those parts of the evidence which adverted to the content of the advice, but did not strike out evidence concerning how the advice had been acted upon by the AIPA's Committee of Management.

[4] After this ruling by the Commissioner, the hearing continued, and there was some further debate about the suitability of one of the questions posed for arbitration and the temporal scope of the dispute. Following a short adjournment for the purpose of seeking instructions, Captain Lucas' representative informed the Commissioner that he was instructed to discontinue the matter. No evidence had yet been heard by the Commissioner at the time this occurred.

[5] On the following day (15 March 2023), Captain Lucas filed a new application pursuant to s 739 of the FW Act for the Commission to deal with a dispute with Qantas in accordance with clause 47 of the Agreement (matter C2023/1371). The dispute described in this application was essentially the same as the subject matter of the earlier application except that it was described as relating to specified time periods. This matter was again allocated to the Commissioner.

[6] After conciliation and discussions between the parties failed to resolve the dispute, at a conference on 29 March 2023 the Commissioner proposed directions for the arbitration of the dispute and a listing for the hearing of the matter on 16-18 May 2023. He also directed the parties to file submissions concerning the questions to be arbitrated. The parties filed such submissions later that day. The next day (30 March 2023), Captain Lucas filed an application for the Commissioner to recuse himself on the grounds of actual and apprehended bias. In the application as filed, the key contentions were:

1. In civil proceedings such as this private arbitration or litigation, it is a well established principle that subsequent related proceedings should not be allocated to, and heard by the same decision maker or judge who has presided over the dispute proceedings a short time before the hearing of the related proceedings.

2. The potential for bias may arise should the judge hear certain evidence again or evidence from the same witness in subsequent related proceedings: see Leach v Commonwealth [2021] FCA 158.

3. The risk of bias is triggered by the concern as to whether the decision maker can navigate a path of impartiality in the face of evidence and submissions from both the part heard application (C2022/7094) and the related proceedings (C2023/1371).

4. Where there are different and potentially conflicting bodies of evidence and submissions, the risk of extraneous information such as overlapping legal and factual issues, being the commonality of the issues and the potential contamination of the extraneous information, such an approach raises a risk of bias.

[7] On 31 March 2023, the Commissioner confirmed the directions and listing for hearing, determined the two questions to be arbitrated, and informed the parties that he would hear the recusal application on 4 April 2023.

[8] Shortly before the hearing of the recusal application, Captain Lucas filed an outline of submissions and a witness statement of Emma Ford, an employee of the AIPA. In this submission, Captain Lucas repeated the contentions stated in his recusal application, stated the disqualification arose 'if the second proceeding C2023/1371 has arisen or resulted in any way from the outcome of the first proceedings C2022/7094' and referred to the Federal Court Full Court decision in GetSwift Limited v Webb.[3] In addition, Captain Lucas contended that:

(1) Actual bias was evidenced by the Commissioner's preference for Qantas' questions over those proposed by him in circumstances where he had filed the dispute application to resolve the dispute to finality. The questions determined by the Commissioner were 'loaded questions where the facts are presupposed by the question'.

(2) The Commissioner was the decision maker who part heard C2022/7094 and is the decision maker in the current matter C2023/1371. The Commissioner has knowledge of the parties' submissions and evidence dependent of both sets of proceedings. The current arbitration required the Commissioner to carefully consider the material previously filed which includes the legal advice and jurisdictional questions as to the powers of the Commission to hear the matter on the basis the questions settled by Commissioner. The Commissioner had made a ruling about the admissibility of aspects of the legal advice and engaged in a discussion with counsel for Qantas about changing the questions for arbitration. A reasonable-minded member of the public might reasonably apprehend that the Commissioner will not bring an impartial and unprejudiced mind to the resolution of the questions in this arbitration given the views he has already expressed in the part heard matter.

[9] The witness statement of Ms Ford set out relevant aspects of the record of proceedings in matters C2022/7094 and C2023/1371.

[10] In his oral submissions at the hearing of the recusal application, the representative for Captain Lucas expanded upon his earlier contentions. During his submissions, the following exchange occurred between the Commissioner and Captain Lucas' representative:

THE COMMISSIONER: And is the actual bias ground based on the ruling in relation to the evidence of the relevance of the Ian Neil opinion and the development of the questions over both matters?

MR DALGLEISH: Yes, in part - that could go to actual bias and it could also go to the lesser bar, apprehended bias. The primary substance there of course, for yourself, Commissioner Ryan, is the perception in relation to the recollection of the issues that would have occurred in both sets of proceedings. We're not casting any doubt on, you know, your judicial experience, ability or attributes. We're simply talking about the primary substance of the perception of the recollection issue between the two sets of proceedings, the ruling and that the same issues will re-emerge in the second sets of proceedings. Without seeking to sort of lay down some sort of abstract or absolute rule for you, Commissioner, the submission from APA is essentially that there's a causal connection between the two proceedings in that the tribunal could not be seen by the public to be independent with yourself sitting as the member on both sets of proceedings.[4]

[11] The Commissioner issued his decision concerning the recusal application on 13 April 2023.[5] In his decision, the Commissioner did not accept that his role as the decision-maker in matter C2022/7094 might reasonably cause a fair-minded lay observer to apprehend, having regard to all the circumstances, that he might not bring an impartial mind to the determination of matter C2023/1371.[6] In this respect, the Commissioner noted that his decision-making in matter C2022/7094 had been confined to the ruling on the evidence concerning the legal advice obtained by the AIPA and the determination of the questions for arbitration.[7] In relation to matter C2023/1371, the Commissioner also noted that Captain Lucas had not yet filed the materials in support of his case.[8] Specifically in relation to his ruling on the evidence concerning the legal advice, the Commissioner said that this 'was a routine ruling in relation to the admissibility of particular parts of witness statements' and that, in matter C2023/1371, it was not yet known whether Captain Lucas would tender any evidence in relation to the advice (because he had not yet filed his evidence).[9] Consequently, the Commissioner said that 'I do not know how I will decide any contested issues relating to the admissibility of evidence that may arise in these proceedings'.[10]

[12] As to the questions for arbitration, the Commissioner said in relation to matter C2022/7094 that he did at not at any stage make any ruling or determination in relation to changing the questions for arbitration, but only put a position to the parties and sought their views in response to an issue about one question raised by the parties. It was this issue about which Captain Lucas' representative sought an adjournment to obtain instructions, with the discontinuance following thereupon.[11] As to matter C2023/1371, the Commissioner said that, in the absence of agreed questions, it is open to the Commission to determine the questions to be answered in a way that properly characterises the dispute and that will lead to a resolution of the dispute, and he did not accept Captain Lucas' submission that an applicant to a dispute application determines the questions for arbitration.[12] As such, his determination of the questions for arbitration was not determinative of actual basis nor might it give rise to a reasonable apprehension of bias on the basis of a possibility of prejudgment.[13] The Commissioner accordingly declined to recuse himself from the matter and dismissed the recusal application.

[13] Before we turn directly to Captain Lucas' appeal, two other background facts must be noted. First, on 11 April 2023, Captain Lucas lodged an appeal against the Commissioner's directions issued on 31 March 2023 insofar as they determined the questions for arbitration. The appeal was heard by a Full Bench in relation to the preliminary question of permission to appeal on 17 April 2023 and, at the conclusion of that hearing, the Full Bench determined that permission to appeal was refused. The Full Bench issued its reasons for this decision on 18 April 2023.[14] In its reasons, the Full Bench said (among other things):

The proposition that, in an arbitration conducted in accordance with the dispute resolution procedure in an enterprise agreement and pursuant to s 739 of the FW Act, the Commissioner may not as a preliminary step identify the issues in dispute requiring arbitration (by way of the formulation of questions or otherwise) is untenable. The correct characterisation of the dispute and the precise issues requiring resolution is usually an essential preliminary step in the arbitration process.[15] (footnote omitted)

[14] Second, Captain Lucas filed his evidence in matter C2023/1371 on 19 April 2023. That evidence does not include any material concerning the legal advice previously obtained by the AIPA of the nature of that which the Commissioner refused to admit in matter C2022/7094.

[15] Captain Lucas' notice of appeal sets out his appeal grounds in 30 numbered paragraphs which contain a litany of complaints of error, many of which are difficult to relate to the Commissioner's decision or the subject of recusal for actual or apprehended bias. Paragraph 2 contains a generalised contention that the Commissioner erred in concluding that he could further deal with the application on the basis that the grounds relied upon for the test for actual and apprehended bias had not been made out. The other paragraphs appear to contend that the Commissioner erred in the following respects:

Paragraph 1: The Commissioner failed to address the issues of law which arose and the arguments and findings on each issue.

Paragraphs 3, 12, 21, 22: The Commissioner erred in finding that the evidence concerning the AIPA's legal advice sought to be admitted in matter C2022/7094 'referred to the effect of that advice' when the AIPA had not waived legal professional privilege. The exclusion of the evidence had prejudiced Captain Lucas and its admission would not prejudice Qantas. the hypothetical observer would apprehend bias in respect of the Commissioner's exclusion of the evidence concerning the AIPA's legal advice in matter C2022/7094, which was entirely relevant and admissible. This constituted jurisdictional error.

Paragraphs 4-5: Captain Lucas was 'unable to proceed' with the application in matter C2022/7094 after counsel for Qantas and the Commissioner 'sought to alter the scope of the arbitration after the parties had filed evidentiary material and submissions already determined.'

Paragraphs 6, 16, 17, 25: The Commissioner erred by settling the questions for arbitration in matter C2023/1371. The Commissioner erred in the proper interpretation of clauses 19.1.2 and 16.5 of the Agreement, as the settled questions were beyond the jurisdiction of the Commission or do not resolve to finality the issues before the Commission, and consequently the Commissioner exceeded or constructively failed to exercise his jurisdiction.

Paragraphs 7-8: The Commissioner erred by identifying the two grounds in the recusal application as the basis for the recusal application, which was also advanced on the basis of the reasons stated in Captain Lucas' outline of submissions.

Paragraphs 9, 11, 13-15: The Commissioner erred in law at various identified points in the decision in considering whether he was satisfied that he would himself be of a closed mind or had prejudged the matter, when the test is concerned with the perception of a reasonable observer.

Paragraph 10: The Commissioner erred at paragraphs [74] and [75] 'as the relevant apprehension of bias depends not only upon the significance and nature of the dispute's factual matrix as it would be perceived by a reasonable fair minded observer but would note that the earlier expressed opinion would convey recall of the previous matter from the subconscious.'

Paragraph 18: The Commissioner erred in finding that matters C2022/7094 and C2023/1371 were the same, when the latter matter required interpretation of a greater number of provisions of the Agreement.

Paragraph 19: The Commissioner erred in that the admissibility of the AIPA's legal advice will arise in matter C2023/1371.

Paragraph 20: The Commissioner erred by failing to take into account relevant evidence or material considerations relating to actual and apprehended bias.

Paragraphs 23-24: The Commissioner failed to give reasons or adequate reasons for his decision, and thereby exceeded or constructively failed to exercise his jurisdiction.

Paragraphs 26-28: The Commissioner made material errors of fact, and thereby exceeded and/or constructively failed to exercise his jurisdiction, and otherwise unreasonably exercised the statutory power conferred on him because of his errors of fact, the unnecessarily harsh effect of his decision, his failure to properly consider the matter, the demonstrable inconsistency with other decisions, and he discriminated without a rational distinction.

Paragraphs 29-30: The Commissioner erred by making the direction for the substantive hearing before resolving the recusal application and thereby exceeded or constructively failed to exercise his jurisdiction.

[16] Captain Lucas' notice of appeal contends that it would be in the public interest for the Commission to grant permission to appeal because:

• (1) There is a requirement in the [Agreement] that training vacancies in the coming training year (FY) are published by 15 April of each calendar year pursuant to clause 16.4.2 of the Agreement. The specific clause reads: The Company will advertise all initial vacancies planned for a training block by 15 April each year. Each advertised vacancy will specify the bid period in which training is expected to commence and, if possible, the planned date on which the training course is to commence. If Qantas has clearly identified a need to train S/Os to the A380 in FY23/24. Pilots would expect that under the LHEA10 Second Officer vacancies on the A380 would be advertised.

• (2) The decision under appeal manifests an injustice as the decision affects the present and future rights of 200 Second Officers (pilots) over the next five (5) years in the aviation sector.

• (3) The decision under appeal is attended by sufficient doubt as to warrant its reconsideration.

• (4) The decision under appeal raises important issues concerning the correct approach in determining the actual and apprehended bias.

• (5) The decision under appeal raises general issues in relation to the legal principles applied which appear disharmonious when compared with other decisions dealing with similar matters; and

• (6) For such further and other grounds as the Commission may consider to be in the public interest in granting permission to appeal.

[17] Captain Lucas sought a stay of the Commissioner's decision in his notice of appeal. His appeal was listed for hearing on 21 April 2023 in relation to the stay application and the issue of permission to appeal. Prior to the hearing, Captain Lucas advised that he no longer pressed the stay application. In his oral submissions at the hearing, Captain Lucas focused on the proposition that, in determining Qantas' objection to the evidence concerning the AIPA's legal advice in matter C2022/7094, the Commissioner became aware of 'extraneous material' of an inadmissible and prejudicial nature which might cause a fair-minded lay observer to reasonably apprehend that, in matter C2023/1371, the Commissioner might not bring an impartial mind to the determination of the dispute. Captain Lucas also contended, as we understand him, that the Commissioner's ruling on the evidence concerning the advice constituted an 'interest' and 'prejudgment' which might give rise to a reasonable apprehension of bias in matter C2023/1371. Captain Lucas confirmed that he did not wish to contend for actual bias in his appeal.

[18] We observe at the outset that Captain Lucas' case for the recusal of the Commissioner has a shape-shifting nature which makes it very difficult to identify with precision the basis upon which the case is advanced. Captain Lucas' contentions and submissions have differed markedly, with particular propositions waxing and waning, as between the time of his original recusal application, his written outline of submissions at first instance, the oral submissions made at the hearing before the Commissioner, his notice of appeal, and the oral submissions made at the hearing before us. Nonetheless, for the reasons which follow, we consider that Captain Lucas' case that the Commissioner was disqualified from further dealing with matter C2023/1371 is completely without merit.

[19] The primary proposition advanced by Captain Lucas at first instance was that, by virtue of the mere fact that the Commissioner had sat in matter C2022/7094, he was disqualified from dealing with matter C2023/1371 on the basis of apprehended bias. This was said to be the result of a 'well-established principle' of civil litigation concerning related proceedings. No such principle of law is known to us. No authority standing for such a principle was cited by Captain Lucas either at first instance or in his appeal. Captain Lucas made reference in his submissions to the decisions in Leach v Commonwealth,[16] Getswift Limited v Webb[17] and Isbester v Knox City Council,[18] but each of these cases involved factual scenarios that bear no resemblance to the facts of this matter (as the Commissioner correctly observed in paragraph [69] of his decision in relation to the latter two decisions). As the High Court emphasised in Isbester, the application of the governing principle of apprehended bias depends upon the nature of the decision to be made and its statutory context, what is involved in making the decision and the identity of the decision-maker and, as an aspect of the wider principles of natural justice, it has a flexible quality differing according to the circumstances in which a power is to be exercised.[19] The application of the apprehended bias principle here therefore necessarily turns on the particular facts and circumstances of matters C2022/7094 and C2023/1371.

[20] As earlier explained, matter C2022/7094 terminated as a result of Captain Lucas' discontinuance rather than any determination made by the Commissioner. That the Commissioner had earlier made a ruling concerning an objection to the admission of one minor aspect of Captain Lucas' evidentiary case, and engaged in a short discussion with the parties' representatives about an issue which was raised concerning one of the questions for arbitration, could not be sufficient to give rise to the possibility of a reasonable apprehension of bias. The fair-minded lay observer would be taken to know that a tribunal decision-maker may be required, as a matter of course, to make interlocutory rulings and engage in exchanges with parties' representatives as to issues which arise in the course of a hearing, and would not consider that conduct of this nature might compromise the decision-maker's impartiality as to the ultimate decision to be made in that or a related matter.

[21] Captain Lucas's contention in his appeal that the evidence concerning the AIPA's legal advice which the Commissioner ruled to be inadmissible in matter C2022/7094 constituted 'extraneous material' the knowledge of which might give rise to a reasonable apprehension of bias in matter C2023/1371 is also without merit. Captain Lucas was, even when pressed on the matter, completely unable to articulate any logical connection between the Commissioner's knowledge of this 'extraneous material' and the apprehended deviation from the course of the Commissioner deciding matter C2023/1371 on its merits (as required by the 'second step' of analysis identified in Ebner v Official Trustee in Bankruptcy[20]). There is no basis to conclude that such a connection might exist. We have reviewed the evidence which the Commissioner rejected: it is short in compass, constituted an insignificant part of Captain Lucas's case in matter C2022/7094, and knowledge of it could not cause any conceivable prejudice to the impartial consideration of Captain Lucas' case in matter C2023/1371. No issue of prejudgment may arise because Captain Lucas does not (as demonstrated by the evidentiary material he filed on 19 April 2023 in accordance with the Commissioner's directions) seek to adduce evidence of a similar nature in matter C2023/1371. The proposition that the Commissioner's ruling in matter C2022/7094 gave rise to a disqualifiable 'interest' in matter C2023/1371 is not arguable.

[22] As to Captain Lucas' other appeal grounds, it is sufficient to make the following comments:

(1) The Commissioner's decision demonstrates he correctly understood and applied the applicable legal principles.

(2) The Commissioner's decision clearly explains the basis upon which he determined that he was not disqualified from further dealing with the matter before him. There is no arguable case of an inadequacy of reasons.

(3) The fact that, in matter C2023/1371, the Commissioner determined the questions for arbitration was an entirely proper course (see paragraph [13] above) and does not give rise to a reasonable apprehension of bias.

(4) Because, at first instance, Captain Lucas contended that there was actual as well as apprehended bias, the Commissioner did not err when in response to this contention he considered whether he had a closed mind or had prejudged the matter. Actual bias is not determined by reference to the possible perception of the fair-minded lay observer.

(5) Captain Lucas has not identified any of the factual errors which he alleges, and the hearing before us appeared to proceed on the basis of an uncontested factual matrix. Nor has he identified the relevant evidence or material considerations which the Commissioner is said to have failed to take into account (which contention in any event appears to treat the decision as involving the exercise of a discretion, which it did not).

[23] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[21] Captain Lucas' appeal raises no issue of importance, general application or novelty which would justify the grant of permission in the absence of an arguable case of error. Accordingly, we are not satisfied that it is in the public interest to grant permission to appeal such as to require permission to be granted under s 604(2) of the FW Act, nor do we consider that permission should be granted on discretionary grounds.

[24] We order that permission to appeal is refused.

Sydney and Melbourne by video using Microsoft Teams:

[1] [2023] FWC 878

[3] [2021] FCAFC 26, 283 FCR 328

[5] [2023] FWC 878

[14] [2023] FWCFB 77

[16] [2021] FCA 158

[17] [2021] FCAFC 26, 283 FCR 328

[18] [2015] HCA 20, 255 CLR 135

[19] Ibid at [23] per Kiefel, Bell, Keane and Nettle JJ.

[20] [2000] HCA 63, 205 CLR 337 at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[21] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

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