Dunstan v von Doussa

LEGISLATION CITED: Industrial Relations Act 1996

Dunstan v von Doussa (No 2) [2008] FCA 827 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Helljay Investments Pty Limited v Deputy Commissioner of Taxation (Cth) [1999] HCA 56; (1999) 74 ALJR 68 Jones v Australian Competition and Consumer Commission [2002] FCA 1054 Landman & Anor v Grange Securities Limited [2006] NSWIRComm 183 CASES CITED: Laws v Australia Broadcasting Tribunal (1990) 170 CLR 70 Minister for Immigration and Multicultural Affairs v Jim Legang (2001) 205 CLR 507 Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Transport Industry - Quarried Materials Wages (State) Award (1997) 74 IR 296 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1925) 60 ALR 509

APPLICANT: Mr S Crawshaw SC LEGAL REPRESENTATIVES: RESPONDENT: Mr RC Kenzie QC with Mr TJ Dixon of counsel

NEW SOUTH WALES TEACHERS FEDERATION AND DIRECTOR-GENERAL, DEPARTMENT OF EDUCATION AND TRAINING

Application by New South Wales Teachers Federation for declaratory relief under section 154 of the Industrial Relations Act 1996

1 In these proceedings the applicant, NSW Teachers' Federation ('the Federation') seeks declaratory relief in relation to certain contractual rights, which it claims that three of its members have, in their employment with the Department of Education and Training ('the Department'). The matter was allocated to me for hearing in accordance with s 159 of the Industrial Relations Act 1996 ('the Act'), whereupon the Federation made an application that I not hear the matter, exercising a right provided by s 173 of the Act. 2 In the alternative, the Federation's case was that a reasonable apprehension of bias arose, in circumstances where I had earlier dealt with a dispute it had notified to the NSW Industrial Relations Commission in June 2008 under s 130 of the Act. The dispute concerned new staffing procedures introduced by the Department in Term 1 2008. The old system which the Department had discontinued, involved the allocation of transfer points to individual teachers, according to the schools at which they were employed to teach, in accordance with the Directory of New South Wales Department of Education and Training. The new system introduced in April 2008 with the issue of a new Promotion and Transfer Procedures for School Teachers 2008, did not provide for transfer according to the points accumulated under the old system. 3 The dispute resulted in conciliation proceedings, which I conducted. No agreement emerged between the parties during conciliation, with the result that the Federation discontinued the proceedings. It elected not to pursue any arbitral relief available under ss 135 and 136 of the Act. Instead, it announced its intention to seek declaratory relief in relation to contractual rights which it claimed that its members had. That relief is what is pursued in these proceedings. 4 For its part, the Department's attitude was that given the nature of these proceedings brought under s 154 of the Act before this Court, the Federation has no rights to exercise under s 173 of the Act. 5 As to the bias application, the Department neither consented to, nor opposed the application, observing that 'nothing that took place in the conciliation process causes the Respondent any concerns in relation to the issue of reasonable apprehension of bias', by reference to the approach of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]-[8]. It submitted, however, that a reasonable apprehension of bias must be 'firmly established' (see Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; and that it is not sufficient if a reasonable bystander would have 'a vague sense of unease or distrust' (see Jones v Australian Competition & Consumer Commission [2002] FCA 1054 at [100]). It also submitted that the matters relied upon by the Federation could not establish impermissible prejudgment or partiality (see Dunstan v von Doussa (No 2) [2008] FCA 827 at [31]).

Section 173 of the Industrial Relations Act 1996 6 The Federation argued that the purpose of the section was to facilitate conciliation, to ensure that no party would feel prejudiced in later hearings, because the member of the Commission had engaged in conciliation. This ensured that members of the Commission and parties do not feel constrained from freely engaging in discussions in conciliation, by the prospect that such views or expressions may later redound to their disadvantage. It followed that a technical or limited approach to the interpretation of the section should not be followed. 7 Particular reliance was placed on what a Full Bench of the Commission said about the section in Re Transport Industry - Quarried Materials Wages (State) Award (1997) 74 IR 296 at 306:

These features of the legislation indicate an intention (a) that technical impediments to the right to object should not be permitted and (b) that conciliation on an issue should be a bar to arbitration on the same issue where it remains unresolved. We are unable to accept the submissions for the TWU and the Road Transport Association that the words in s 173(1) "an industrial dispute or other matter" and "the dispute or matter" are to be read as indicating that conciliation in a dispute matter is not or should not be a bar to arbitration by the same member in a consequential application to vary the award in relation to the same subject matter. The reasons for possessing a right to object apply equally in both circumstances. If the result were otherwise, it is obvious that proceedings could be created with a view to overcoming the fundamental right conferred by s 173(1). We do not suggest that the application in Matter No 5227 may be so viewed; its origins are obviously founded on practical, commonsense considerations.

We consider the section ought to be approached as contended for by the appellant. The clear and unambiguous purpose of the provision is to grant to one or other of the parties the opportunity to ensure that, after a conciliation has been attempted but has failed, another person not privy to the conciliation proceedings will hear and determine the matter by way of arbitration. If s 173(1) were read strictly or literally to the effect contended for by the TWU and the Road Transport Association, the effect would be to permit a member of the Commission who has conciliated in one proceeding to proceed to determine another proceeding dealing with precisely the same subject matter and even as between the same parties. This obviously cannot be the intention of the provision. Rather, as we have said, we consider its intention and effect is to ensure that a matter requiring arbitration will be dealt with by a member of the Commission who has had no involvement in the previous conciliation procedures. 8 It followed, it was submitted, that 'the question is only whether the member of the Commission has 'conciliated at all on the relevant subject matter.' If he or she has, then s 173 applies and any party may request that the proceedings be determined by another member of the Commission. 9 Thus, it also followed that the term 'arbitration powers' used in s 173, must not be construed narrowly. The word 'arbitrate' means to determine a dispute or matter before it, by whatever powers are available to the Commission. In an arbitration s 136(1)(d) permits the Commission to make 'any other kind of order it is authorised to make'. That includes granting declaratory relief under s 154, notwithstanding that involves the exercise of judicial power by the Industrial Court. 'The Industrial Court is no more than the Commission constituted by a judicial member for the purpose of exercising functions conferred or imposed on the court'. 10 Any other view would defeat the purpose of s 173. 11 I am unable to agree with the construction of s 173 urged by the Federation, for the following reasons. 12 The section, which appears in Chapter 4, Industrial Relations Commission, Part 5 Procedures and Power of the Commission, provides: 173 Members who may exercise arbitration powers after attempted conciliation (1) The member of the Commission who attempted conciliation of an industrial dispute or other matter is not to exercise arbitration powers in relation to the dispute or matter if a party to the arbitration proceedings objects and requests that a different member of the Commission exercise arbitration powers. (2) A member of the Commission is not, for the purposes of this section, taken to have attempted conciliation merely because: (a) the member attempted conciliation after having begun to exercise arbitration powers, or (b) the member arranged or gave directions for a conference of the parties involved in the industrial dispute or other matter, or their representatives, to be presided over by the member, but the conference did not take place or was not presided over by the member, or (c) the member arranged or gave directions for those parties or their representatives to confer among themselves at a conference at which the member was not present. 13 There is no issue between the parties, that the question of whether or not teachers such as those the subject of these proceedings had the contractual rights claimed, was one of the matters which arose in the earlier conciliation proceedings. Amongst other things, the Federation disputed the Department's right to introduce the new system, given the contractual rights it claimed teachers had in relation to transfer points. The Department did not accept that the teachers it employs have the claimed contractual rights. Its view was that it was entitled to introduce the new system. 14 It follows that the question which is here at issue between the parties in relation to s 173, is whether in these proceedings, brought before the Court under s 154 of the Act, the declaratory relief sought involves the exercise of 'arbitration powers' in relation to the matter in issue. 15 The term 'arbitration powers' is not one defined in the Act. Neither is the word 'arbitrate' or 'arbitration'. In accordance with the approach of the High Court in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1925) 60 ALR 509 at 514 per Mason J, the meaning of the term must thus be gleaned from the Act itself. It follows that the term 'arbitration powers', where used in s 173 of the Act, must be construed by reference to the powers conferred by the Act, when arbitration is provided for. 16 Arbitration of industrial disputes is dealt with in Chapter 3 Industrial Disputes, Part 1 Conciliation and arbitration of industrial disputes. Sections 135 and 136 provide for arbitration of disputes by the Industrial Commission, in cases where conciliation has failed to produce an agreement. Such an arbitration follows the issue of a certificate provided for by s 135(3). Such arbitrations do not fall within the jurisdiction of the Industrial Court (see s 153). The proceedings are conducted in accordance with s 163 of the Act, which provides: 163 Rules of evidence and legal formality (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 17 In such arbitral proceedings, the Commission is given specified powers. Section 136 provides:

136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. 18 Contrary to the Federation's argument, notwithstanding the provision made in s 136(1)(d), the Commission does not have the power to make declarations of right, pursuant to s 154 of the Act, in such arbitral proceedings, or otherwise. The effect of s 153(1)(b), appearing in Chapter 4, Part 3 the Industrial Commission in Court Session (now known as the Industrial Court of New South Wales - see s 151A), is that only the Industrial Court may exercise the functions given by s 154, to grant declaratory relief. Section 154 of the Act, provides: 154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. 19 The Court is constituted by the judicial members of the Commission (s 151). Unlike arbitral proceedings, the rules of evidence and other formal procedures of a superior court of record apply in proceedings before the Court (s 163(2)). 20 That the power to make a binding declaration of right is conferred on the Industrial Court, a superior court of record, with the equivalent status of the Supreme Court and the Land and Environment Court (s 153 of the Act), is consistent with the view that the power to make binding declarations of right, involves the exercise of judicial, rather than arbitral power. (See Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 148 - 149: What this principle relevantly denies to the Authority is the power of judicial determination which includes, to use the words of Kitto J in Aberdare Collieries [(1963) 37 ALJR, at p 43] : "the giving of decisions in the nature of adjudications upon disputes as to rights or obligations arising from the operation of the law upon past events or conduct." The making of a binding declaration of right is an instance of the exercise of judicial power. It stands outside the arbitral function. But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power: Cessnock Collieries (1960) 103 CLR, at p 22.] ; Reg. v Commonwealth Industrial Court; Ex parte Australian Coal & Shale Employees' Federation [(1960) 103 CLR 171, at p 174.] ; Key Meats [(1982) 148 CLR, at pp 596-597.] . Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties: Aberdare Collieries [(1963) 37 ALJR, at p 44.] . Of course, the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights.

21 It follows that contrary to the Federation's case, under this statutory scheme, the Commission's 'arbitration powers', dealt with in s 173, do not include the powers exercised by the Industrial Court, when making declarations of right in accordance with s 154 of the Act. While such binding declarations of right may be made in relation to matters within the jurisdiction of either the Court, or of the Commission, such judicial powers are only exercisable by the Court and not by the Commission, when exercising arbitration powers. 22 In its argument, the Federation relied on the provisions of s 176 of the Act, submitting that due to the absence of constitutional constraints in the State system, reference to cases in the federal sphere is of limited assistance. Section 176 provides: 176 Reconstitution of Commission during hearing (1) The President of the Commission may replace the member, or one of the members, constituting the Commission after the hearing of a matter has commenced if the member becomes unavailable for any reason, or ceases to be a member, before the matter is determined. This subsection does not apply to proceedings before the Commission in Court Session unless the parties consent. (2) The Commission as so reconstituted is to have regard to the evidence and decisions in relation to the matter that were given or made before the Commission was reconstituted. (3) If a matter arises in proceedings before the Commission (otherwise than in Court Session) that is within the jurisdiction of the Commission in Court Session, the Commission may continue to deal with that matter as the Commission in Court Session if: (a) the Commission is duly constituted or reconstituted by a judicial member or members, and (b) any member who is not a judicial member does not take part in the proceedings on that matter, and (c) only such evidence given in the existing proceedings before the Commission as is admissible in evidence in proceedings before the Commission in Court Session is taken into account in determining that matter. (4) This section does not apply to criminal proceedings.

23 The section is directed at ensuring that proceedings before the Commission are dealt with efficiently, eschewing technicality as the Act elsewhere expressly provides. Where issues arise which the Commission does not have jurisdiction to deal with, the matter may proceed, so long as the Commission is constituted, or reconstituted, by a member of the Court. Members of the Commission who are not members of the Court, must not take part in that aspect of the proceedings and only evidence admissible in accordance with the requirements of the Act, in relation to proceedings before the Court, may be taken into account, in determining that issue. 24 On its face, the section does not provide that the Court is thereby exercising 'arbitration powers', in relation to a matter within the Industrial Court's jurisdiction. Indeed, it is difficult to conceive how an application for declaratory relief could arise before the Commission, in proceedings to which s 176 is directed, particularly having in mind the provisions of s 175 of the Act, to which I will turn below. Even so, the section does not provide that either the Commission or the Court will then exercise arbitration powers in relation to the matter in respect of which the provisions of s 176 come into operation. To the contrary, the Court will then be exercising its own jurisdiction. What cannot be overlooked is that the section provides that in such a case 'the Commission may continue to deal with the matter as the Court'. Also to be considered is that in any event, these proceedings were not brought before the Commission, but before the Court and so, the operation of s 176 of the Act cannot arise for consideration. 25 This conclusion as to the meaning of the term 'arbitration powers' is supported by other provisions of the Act. Arbitration of claims for compensation for the termination of certain contracts of carriage, is provided for in Chapter 6 Public Vehicles and Carriers, Part 7, Compensation for the termination of certain contracts of carriage. Section 349 of the Act specifies the powers which the Contract of Carriage Tribunal may exercise in such an arbitration. It is unnecessary to further consider those provisions, other than to observe that the arbitration powers granted to that Tribunal by s 349, also do not include the power to grant declaratory relief under s 154 of the Act, which is reserved to the Industrial Court. 26 Further support for the conclusion I have reached may be found in s 175 of the Act, which empowers the Commission 'for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument).' 27 The s 175 interpretation power is granted to the Commission, only 'for the purpose of exercising its functions in connection with a matter before it', and so may be exercised in the course of arbitral proceedings. By way of contrast, unlike the Industrial Court, the Commission may not exercise the declaratory power granted by s 154, even in relation to a matter involving the interpretation, application or operation of a law or instrument. While the Commission has the power to 'determine' such questions, it does not have the power to make binding declarations of right, in relation to such matters. 28 The Federation, of course, does not seek the exercise of the s 175 power in these proceedings. They were available to be exercised in an arbitration of the dispute it earlier brought to the Commission. Instead, it now seeks from the Court binding declarations of right as to whether or not the teachers in question have the contractual entitlements claimed. 29 I am well satisfied, given the structure of the Act, that the view that such a declaration involves the exercise of 'arbitration power', is not available. 30 The Federation relied on the approach of the Full Bench in Re Transport Industry - Quarried Materials Wages (State) Award to the construction of s 175, namely that given its purpose, it must not be interpreted strictly or literally. That approach cannot, however, be taken to the point where the words of the section themselves, are not given their intended effect. In any event, the Full Bench itself was there concerned with the particular position of parties to arbitral proceedings. The Commission was not called upon to consider other types of proceedings provided for by the Act, particularly those brought before the Court under s 154. 31 In my view, the approach urged by the Federation, namely to construe the term 'arbitral powers' used in s 173 widely, so as to include whatever powers are available under the Act to deal with a matter which has arisen in conciliation, whether the proceedings are before the Commission or the Industrial Court, would also be to fail to give effect to the purpose underpinning the section. 32 Had the legislature wished the rights granted by s 173 to be available in any proceedings before the Commission or the Court, where a matter in issue had earlier been the subject of conciliation, it could have done so, by the simple mechanism of making no reference in s 173 to 'arbitration' powers. They are not the only type of powers which the Act confers on the Commission and the Court. It follows that under this statutory scheme, the use of the word 'arbitration' in the composite term must be read as a word of limitation. To approach the term in any other way, would be to give the word 'arbitration' no work to do. That is not a permissible way in which to approach questions of statutory construction (see generally the discussion at [2.22] and [2.23] in Pearce and Geddes, Statutory Interpretation in Australia and the authorities there referred to). 33 I am also satisfied that the construction of the Act which I favour, accords with the purpose underlying s 173. What the section does is to give parties to proceedings brought before the Commission under the Act, which have involved the exercise of conciliation powers, a right which they do not have in the absence of the section. That is the right to insist that the member of the Commission who conciliated the matter, does not exercise arbitration powers to resolve that matter, without having to establish either actual or apprehended bias. In the absence of the section, such a party has the right to raise an objection to a member hearing that matter, but must then demonstrate the existence of actual or apprehended bias, if the disqualification application is to succeed. 34 That the legislature would not wish to extend the rights granted by s 173 to all proceedings before the Commission or the Court, notwithstanding a prior conciliation in which the issue in question had played a part, is understandable, particularly having in mind the small number of judicial officers who constitute the Court. Section 173 grants parties to proceedings where arbitral powers are to be exercised, a right which does not exist at common law. The legislature was plainly content not to so regulate the question of disqualification, when such an issue arose in other types of proceedings. It left those parties in the normal position in which litigants are placed. That position is one where a strong, well known approach has repeatedly been taken by the High Court, as to the nature of the case which an applicant must demonstrate, when asking a judge to disqualify him or herself from dealing with a matter allocated for hearing. Reasonable apprehension of bias 35 The onus thus fell on the Federation to establish a proper basis for its disqualification application. The High Court has cautioned against judges too readily acceding to such applications. In Re JRL; Ex parte CJL (1986) 161 CLR 342, Mason J observed at 351 - 352:

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.

36 In our legal system, parties do not choose their judges and judges do not choose their cases, they are allocated according to the system which each Court has established for the proper disposition of that Court's work, in accordance with the statute which regulates the operation of that Court. The easy course, of always acceding to a disqualification application when it is made, is not one available to judicial officers. 37 Hayne J in Helljay Investments Pty Limited v Deputy Commissioner of Taxation (Cth) [1999] HCA 56; (1999) 74 ALJR 68, observed:

11. The principles concerning what has come to be called shortly, if not wholly accurately, the "appearance of bias" by judicial officers are well established; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78. What must be demonstrated to the requisite degree is the appearance of prejudgment, not simply that a particular outcome of the litigation is likely or unlikely. As Mason J said in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352:

"It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248 and Livesey (1983) 151 CLR 288 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554; Watson (1976) 136 CLR 248 at 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 14; 32 ALR 47 at 50 - 51." 12. … The "fair and unprejudiced mind" which must be brought to bear upon the determination of litigation is, as the Court said in R v Commonwealth Conciliation and Arbitration Commission ; Ex parte Angliss Group (1969) 122 CLR 546 at 554, "not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it". 38 More recently, in Ebner, the High Court observed:

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.

39 Here there is no issue, as I observed, that during the conciliation of the earlier dispute between the parties, they were disagreed as to whether or not the Federation's members had the contractual rights here claimed. That was but one aspect of the dispute. 40 The dispute concerned a decision made by the Department to introduce a new system by which teachers it employed were transferred between Departmental schools. There were numerous disagreements between the parties as to what the Department had done, how it had gone about developing and introducing the new system, how it was to operate and the consequences for individual teachers and for schools, especially those which were hard to staff, given their geographical location, or other difficulties which they faced. The conciliation was unable to produce an agreed resolution of these matters and the proceedings were concluded when the Federation, the notifier of the dispute, determined not to pursue relief in arbitral proceedings, as was its right. Rather, it foreshadowed that proceedings for the declarations of right now pursued, would be brought. 41 The Federation's case was that in the conciliation proceedings the parties had advanced submissions, including in private conference, and that substantial documentation was received in relation to the subject matter of the dispute. What was dealt with included matters which will not be part of the declaratory relief proceedings. The parties' principal concerns were identified and various suggestions and proposals were explored. Views as to the matters in dispute were expressed, by reference to an analogy drawn by the Federation in relation to the capability of airlines changing frequent flyer points programmes. 42 It was argued that the existence of s 173 of the Act, evidenced a recognition by the Parliament that it was undesirable for the member of the Commission who engaged in conciliation to hear and determine subsequent proceedings; and that engaging in conciliation could cause disquiet or concern on the part of a party or observer, that the party may be prejudiced by what had occurred during conciliation, even if the grounds for disquiet or concern are difficult or impossible to identify, let alone prove. 43 It followed that a fair minded lay observer might reasonably apprehend that an impartial or unprejudiced mind might not be brought to the orders sought in these proceedings and so disqualification should follow. 44 It seems to me that the existence of s 173 of the Act, lends no support to this application, given that the section does not apply to these proceedings and confers a right on parties to proceedings, where arbitration powers are to be exercised, which parties to proceedings such as this do not have. It is not sufficient for a sense of disquiet 'difficult or impossible to identify, let alone prove' to exist, for an application such as this to be acceded to. That is not the law - (see Minister for Immigration and Multicultural Affairs v Jim Legang (2001) 205 CLR 507 at 549 per Kirby J.) 45 There, Gleeson J and Gummow J described applicants such as this as raising 'imputed bias' (at 541). At 542, they observed at [115]:

The standards concerning imputed bias are rigorous in the case of those who exercise judicial power [ Livesey v NSW Bar Association (1983) 151 CLR 288.] . They are likewise rigorous for jurors [Webb v The Queen (1994) 181 CLR 41.], arbitrators [R v Gough [1993] AC 646.] , court appointed referees [ Najjar v Haines (1991) 25 NSWLR 224; Allars, "Procedural Fairness: Disqualification Required by the Bias Rule", The Judicial Review, vol 4 (1999) 269, at p 275.] and others connected with the exercise of judicial power. But they are also rigorous in the case of statutory tribunals and other such bodies [ R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142.]. 46 The question here, therefore, is whether or not, in all of these circumstances, a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions required to be decided in these proceedings, given that I earlier conciliated the wider dispute brought to the Commission by the Federation. That is to identify the first step discussed by the High Court in Ebner. The second is to articulate the logical connection between that matter and the feared deviation from the course of deciding the matter on its merits. 47 That is the approach I adopted to a similar application dealt with in Landman & Anor v Grange Securities Limited [2006] NSWIRComm 183. There the disqualification application succeeded in circumstances where the Court's jurisdiction to deal with the application had been explored in conciliation proceedings. Views had been expressed on that issue on the basis of the pleadings as they then stood. In those circumstances, given that exploration, I took the view that a reasonable apprehension of bias could arise. 48 Each case must, however, be determined in the light of its own circumstances. In this case, I am not satisfied that the Federation has met the onus which falls upon it, to establish a logical connection between the fact that the parties' disagreement as to teachers' contractual rights was a matter which arose in the conciliation proceedings and the possibility of deviation from the course of determining this matter on its merits. 49 A question as to the existence of disputed contractual rights, is a matter which must be determined in these contested proceedings, on the basis of the evidence led by the parties, which will no doubt include things such as evidence from the teachers on whose behalf the claim is advanced, documentary evidence, including any written contracts or letters of appointment, on which reliance will be placed, as well as relevant Departmental policies. In the context of this statutory employment, that evidence will have to be considered against the background of what the relevant legislation provides. The parties will advance submissions as to the issues lying between them. 50 There was no suggestion on the Federation's part, that considerations such as these had been explored in the conciliation, or that any views had been expressed, even tentative ones, about the claimed contractual rights. Rather, the concern arose because other matters in dispute between the parties, as to the new transfer system which the Department has introduced had been explored in the conciliation proceedings. They will not arise for consideration in these proceedings, because they are not relevant to what has to be here decided - individual teachers' existing contractual rights. What matters the Federation claimed raised the necessary logical connection with an apprehension of bias, was not more specifically identified in the Federation's submissions, but that situation, it was argued, might nevertheless lead a fair minded lay observer to the view that a determination of the teachers' rights, might be influenced by a consideration of such irrelevant matters. 51 That a fair minded lay observer might reasonably apprehend that an impartial or unprejudiced mind, would not be brought to bear on the evidence and submissions advanced by the parties, in relation to the particular question which has to be determined in these proceedings, because in the conciliation proceedings consideration was given to other aspects of the wider dispute, not relevant to a determination of the contractual rights of the teachers in question, has not, to my mind, been established by the Federation. 52 It seems to me, to the contrary, that a fair minded lay observer might reasonably apprehend that the issue brought before the Court in these declaratory proceedings would be decided on the evidence and the arguments led by the parties at the trial and not by reference to irrelevant matters dealt with in other proceedings concluded before the Commission, which are not to be put in evidence, or adverted, to in these proceedings. 53 In coming to that conclusion I have been guided by the approach of the High Court in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group. A similar approach was taken in Laws v Australia Broadcasting Tribunal (1990) 170 CLR 70 at 100 per Gaudron and McHugh JJ. In Angliss Group, the view taken by the High Court was that even an expressed view that the minds of the members of the former Conciliation and Arbitration Commission favoured the adoption of a particular course, in relation to the introduction of equal pay, would not preclude those members of that Commission from sitting in a case where the awarding of equal pay was the very issue which arose to be decided in the proceedings. The High Court said at 555:

But, in our opinion, the existence of such a general tendency of mind would not disqualify a member or members of the Commission from sitting in a matter in which a decision as to the awarding of equal pay had to be considered. Certainly, in our opinion, neither the existence nor the expression of such an attitude of mind as we have mentioned would justify a reasonable apprehension that a member of the Commission might not bring or be able to bring to the work of the Commission involving the question of equal pay a fair and unprejudiced mind able with judicial propriety to decide the matter placed before it. It is of course the duty of the members of the Commission always to have and to display a willingness, indeed an anxiety, to give full and fair consideration to every relevant argument that may be addressed to them for a revision or even an abandonment of announced opinions. But the mere expression of opinion upon a general question of policy and even the fact that a step has been taken in furtherance of such a policy, if that be the right view of what the Commission did and the President said, give, in our opinion, no reasonable ground for a lack of confidence in the integrity of future decisions upon or involving the question of equal pay.

54 There the High Court was dealing with arbitral proceedings. While they may require the determination of what existing rights are, such proceedings are ordinarily concerned with what future rights should be. That always requires the exercise of a discretion. Even so, the High Court concluded that an expression of opinion as to the policy in question in the proceedings was not sufficient for a reasonable apprehension of bias to arise. 55 By way of contrast, these proceedings are only concerned to establish what existing rights are. No discretionary considerations arise. Here, properly, it was not suggested that any views on the issue of whether or not the teachers had the claimed contractual rights, had been earlier formed or articulated. Indeed, it was not suggested that there had been any particular opinion expressed on any of the matters in dispute, let alone any opinion on the issues which here arise. No question of the need for the revision or abandonment of any opinion was raised. In my view, a fair minded lay observer would apprehend, in the circumstances, that 'full and fair' consideration would be given to the cases which the parties wish to advance and that a fair and unprejudiced mind would be brought to a consideration of the issue, so that it would be decided with judicial propriety, without regard to irrelevant matters concerning the parties' wider dispute, as to the new transfer system, dealt with in the concluded conciliation proceedings. 56 In the circumstances, I am unable to conclude that a basis for the disqualification application has been made out. Accordingly, the proper course is not to accede to the application which has been made. Orders 57 For these reasons the Federation's application is refused.

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