Fair Work Act 2009

s.394 - Unfair dismissal

The Commonwealth of Australia (Department of Immigration and Border Protection)

[1] This decision concerns a recusal application made by Mr Gregory Gibbens (Mr Gibbens or the Applicant) within his substantive unfair dismissal remedy application made under section 394 of the Fair Work Act 2009 (the Act). The respondent is The Commonwealth of Australia (Department of Immigration and Border Protection) (the Commonwealth or the Respondent).

[2] The Applicant's unfair dismissal remedy application was made on 10 November 2016. The Applicant identified the Respondent as the "Department of Immigration and Border Protection".

[3] The Respondent in its response identified the proper Respondent as the "Commonwealth of Australia" and advised that it would be represented by the Australian Government Solicitor (AGS).

[4] The Applicant objected to the name of the Respondent being changed and to the Respondent being represented by the AGS.

[5] The hearing of the unfair dismissal remedy application was set down for 25 May 2017.

[6] Directions from the Commission required the parties to file submissions on the question of the proper identity of the Applicant's employer and the asserted right of the AGS to represent the Respondent.

[7] The Commission, as currently constituted, issued a decision on 10 April 2017 [[2017 FWC 1938] deciding that the identity of the Respondent would be amended to read "The Commonwealth of Australia (Department of Immigration and Border Protection)" and that lawyers of the AGS are entitled, as of right, to represent the Commonwealth and do not require permission from the Commission.

[8] On 21 April 2017 the Applicant wrote to the Commission as follows,

"I note Commissioner Williams has now made a decision to rename the Commonwealth as the Respondent. I do not understand that decision and Commissioner Williams has as yet, not provided any reasons for the decision.

I therefore with respect, ask that the Commissioner provide his statement of reasons for his decision so that I can at least understand the basis for it. Assuming the reason was not merely arbitrary."

"Commissioner Williams advises the decision [ [2017] FWC 1938] dated 10 April 2017 contains the Commission's reasons and nothing further will be issued with respect to this."

[10] Mr Gibbens' request for a statement of reasons for the Commission's decision referred only to the Commission's decision to "...rename the Commonwealth as the Respondent." There was no reference to the decision regarding representation by the AGS.

[11] This interlocutory decision concerning the name of the Respondent and representation was appealed by the Applicant on 26 April 2017. Consequently the hearing programmed for 25 May 2017 was cancelled.

[12] On 7 July 2017 a Full Bench of the Commission issued a decision [ [2017] FWCFB 2812] dismissing the Applicant's appeal.

[13] In its decision the Full Bench identified that Mr Gibbens' appeal raised three questions, the first of which was the proper identity of his former employer. This question was dealt with by the Full Bench as follows,

"[8] The Department is not itself an entity with legal personality. Commonwealth departments are established pursuant to s.64 of the Australian Constitution by orders of the Governor-General in Council. The Commonwealth of Australia is a body politic established under the Commonwealth of Australia Constitution Act 1900 (Imp).4 Under s.7 of the Public Service Act, the Department is an "Agency", and its Secretary is an "Agency Head". Section 22(1) empowers the employment of person in the APS as follows:

(1) An Agency Head, on behalf of the Commonwealth, may engage persons as employees for the purposes of the Agency.

[9] Thus the proper characterisation of Mr Gibbens' former employment is that he was an employee of the Commonwealth, engaged on the Commonwealth's behalf by the Secretary of the Department for the purposes of the Department. We consider that the Commissioner was correct in identifying the proper respondent to be the Commonwealth of Australia, and its description as "The Commonwealth of Australia (Department of Immigration and Border Protection)" is in accordance with the usual practice in this Commission."

[14] On 12 July 2017 the Commission received a letter from the Applicant which referred to the Full Bench decision and went on to say amongst other things that,

"I therefore ask that the matter be heard other than by Commissioner Williams so that the Commissions dealings with this matter are fair and impartial and appear to be fair and impartial."

[15] Consequently the Commission, as currently constituted, listed what I took to be the Applicant's recusal application for hearing to be held on 5 October 2017. Associated directions were issued to the parties which firstly required the Applicant to provide his written submissions and other materials in support of his recusal application by 17 August 2017.

[16] Nothing was received from the Applicant and on 22 August 2017 I wrote to the Applicant, the letter was sent by email and post, advising him that he had not complied with the directions to file materials and providing him with a further period to do so that being by 29 August 2017. The letter advised that if he did not comply with this further direction the Commission would cancel the hearing of his recusal application and in due course list the substantive unfair dismissal remedy application for hearing.

[17] Subsequently the Applicant filed some materials on 29 August 2017 which appeared to relate to his unfair dismissal remedy application, none of which addressed his recusal application.

[18] On 30 August 2017 I again wrote to the Applicant, the letter was provided by email and post, advising that as he had not filed materials addressing his recusal application the hearing of that application was cancelled and instead on 5 October 2017 a directions hearing would be held to deal with other applications he had previously made which concerned orders to produce documents and for persons to attend the unfair dismissal remedy application hearing.

[19] At the directions hearing on 5 October 2017 it became apparent that the Applicant still wished to pursue a recusal application. Consequently the hearing was adjourned and the parties were provided with a notice of listing for hearing of the Applicant's recusal application on 10 November 2017.

[20] In the directions hearing on 5 October 2017 Mr Gibbens referred to the Respondent's representative being untruthful in this exchange,

MR GIBBENS: No, I don't ignore it. That's not fair to say. Now, when I'm putting a pipe up the exhaust of my car should I write to you and let you know? Is that what you're saying I should do, because that's the pressure that I have been under. I've had all sorts of stuff from Ms Masters both in this jurisdiction and in the Federal Court. The lady is prepared to lie quite openly.

THE COMMISSIONER: I would suggest you don't accuse people of lying, Mr Gibbens. I'm struggling to understand how we can progress your case, because if you are saying to me today you do not wish me to hear your case because you view me as either biased or there's a reasonable apprehension that I am biased, then we will have to have a hearing to deal with that.

You already know that. I've already communicated that to you, and on multiple occasions you've not responded to provide materials in support of that application. We would have been doing that today but you never responded. On 30 August I wrote you a letter explaining the situation and you've never responded. I'm at a loss as to how we progress this. You want us to go backwards again months. I would have thought you would want to have your case progressed as promptly as possible

MR GIBBENS: Given it's 12 months, yes, I do want it progressed as promptly as possible, but if my options are a biased hearing or a fair one I'm going to take the fair one every time." (Underlining added)

[21] Subsequently the Applicant filed submissions in support of his recusal application on 12 October 2017.

[22] The Commission had agreed to make arrangements for the Applicant to collect correspondence relating to his applications from the Commission's Perth Registry.

[23] On 6 October 2017 the Applicant collected a letter left for him at the Registry which advised him that he would be able to collect a copy of the Respondent's materials, which were due to be filed by 27 October 2017, from the Registry on 30 October 2017.

[24] On 7 November 2017 the Applicant collected the copy of the materials earlier filed by the Respondent.

[25] At the hearing on 10 November 2017 the Applicant confirmed that he had picked up the Respondent's materials that had been left for him at the Registry. He then explained that he had not read them because he was without funds to replace his glasses. The Applicant had a magnifying glass and explained he could read the materials but it was a drawn out process using the magnifying glass.

[26] Consequently I explained to the Applicant it was problematic to proceed to hear his recusal application when he had not read the Respondent's materials they had filed.

[27] I then read to the Applicant the summary of the Commonwealth's submissions contained at paragraph 34.[1]

[28] I then expressed the view that I believed the Applicant was disadvantaged by the current situation and may not be able to respond fully to the Commonwealth's submissions.

[29] I then advised the Applicant the matter could be progressed in one of two ways. Either his recusal application would be adjourned until such time as he advised that he had the opportunity to read the materials provided by the Respondent and only then would the hearing be relisted or alternatively he could ask that, recognising he was at some disadvantage, the hearing proceed regardless that day.

[30] The hearing was adjourned for the Applicant to decide which of the two options he wished to pursue. Following the adjournment the Applicant advised that he wished to proceed with the hearing of his recusal application that day.[2]

[31] The hearing began and following the oral submissions of the Respondent the Applicant was offered the opportunity for there to be an adjournment of 15 or 30 minutes however he declined and proceeded immediately with his oral closing.[3]

[32] Mr Gibbens' submissions read as follows,

1. In the hearing of 05th October 2017, Mr Williams made it clear that he would be the arbiter as to the appropriateness of his own recusal.

2. I have concerns that this is entirely contrary to the principles of Natural Justice/Procedural Fairness.

3. I therefore, fully expect that no matter what submissions I make, Mr Williams will decide in favour of himself and find there are no grounds of concern for bias.

4. I also fully expect the respondent will charge me with 'commissioner shopping' in their response.

6. I am not shopping for a favourable commissioner.

7. I hold no list or dossier of potential or preferable commissioners.

8. I do though, want my matter to be dealt with by a Commissioner who will do so with integrity, who will do so fairly and justly, who will be accountable, open and transparent in his or her decisions.

9. This is befitting of the station of any in the judiciary, and for Fair Work Commissioners consistent with Section 577 of the Fair Work Act.

10. On 19th March 2017 the Respondent made submission to Mr Williams seeking a ruling that Australian Government Solicitor personnel be able to appear as the Respondent.

11. The submission from the Respondent made it clear that there was no previous ruling that permitted this.

12. They were therefore asking Mr Williams to make a precedent ruling.

13. Such a ruling would not only affect my matters but those of any of 250,000 public servants.

14. Such a ruling would also hand the AGS a commercial advantage over private firms bidding for Commonwealth business.

15. Such a ruling could potentially be seen as the judicial arm of government providing advantage to the administrative arm of government.

16. The circumstances behoved Mr Williams to have show consideration, openness, and transparency in his decision making.

17. I appropriately made a reply to the Respondent's submission.

18. The Commissioner made his decision on 10th April2017.

19. The only reason he gave to change the direction of the Fair Work Commission and effect future applications from public servants was worded exactly as follows:

"I have considered the submissions of both parties and am satisfied that lawyers of the AGS are entitled, as of right, to represent the Respondent being the Commonwealth of Australia (Department of Immigration and Border Protection) and consequently permission from the Commission is not required."

20. Mr Williams words, "I have considered" offer no explanation whatsoever of reasons for his decision or why this new view and precedent should be established. In fact, it appears arrogant.

21. As I understand, members of the judiciary are obliged to provide reasons for their decisions.

22. Mr Williams certainly failed to be Open and Transparent.

2. FAILURE TO RESPECT APPLICANT'S REQUEST FOR REASONS

23. Nonetheless I respectfully wrote to Mr Williams on 21st April2017 using the words.

"I note Commissioner Williams has now made a decision to rename the Commonwealth as the Respondent. I do not understand that decision and Commissioner Williams has as yet, not provided any reasons for the decision.

I therefore with respect, ask that the Commissioner provide his statement of reasons for his decision so that I can at least understand the basis for it. Assuming the reason was not merely arbitrary."

24. Mr. Williams wrote back through his assistant stating, "Commissioner Williams advises the decision [ [2017] FWC 1938] dated 10 April 2017 contains the Commission's reasons and nothing further will be issued with respect to this."

25. I found the reply to be curt and conveyed a disdain for me that I should dare enquire.

26. Mr Williams was also not open nor transparent.

27. I therefore came to the conclusion Mr Williams was likely biased.

28. I had to consider the risk appealing his decision would have to Mr Williams having a biased regard for me in my matter.

29. I expressed that concern to Vice President Hatcher in hearing on 30th May 2017.

30. Vice President Hatcher did not address that concern at all.

31. Since that time, I have seen or heard nothing from the Commission that would cause my concern to be alleviated.

32. In hearing on 05th October 2017 I made the point that the Respondent has been lying.

33. Mr Williams knows they have been lying because Mr Williams has a copy of my letter of 16th December 2016.

34. That letter, though not comprehensive, pointed to 6 falsehoods made by the Respondent and supplied source documents from the Respondent that inconvertibly demonstrated the falsehoods.

35. Mr Williams also knows the Model Litigant Guidelines and that the Respondent should be conducting themselves subject to them.

36. However, in spite of this knowledge, Mr Williams, in hearing on 05th October 2017, further fuels concerns about bias by saying nothing to the Respondent in the way of censure or direction about truth. Even though he knows, I know and even the respondent knows it has been untruthful in my matters thus far.

37. Though not immediately relevant to the recusal matter I take this opportunity to point out to the Respondent the 10th, 11th and 12th paragraphs of page 4 of my letter of 16th December 2017 and Annexures E and F. I also refer the Respondent to paragraph 18 of Ms Masters sworn affidavit in matter 219/2017 in the Federal Circuit Court, where she claims not to have knowledge of that very information.

38. My Letter of 16th December 2017 is attached as ANNEXURE 'A'

39. Appendix B of the Legal Services Direction 2005, the Model Litigant Guidelines are attached as ANNEXURE 'B'.

[33] The Commonwealth also provided written submissions which are summarised below.

[34] The Commonwealth's position is that a recusal application is a matter for the Commission to decide on the basis of the grounds advanced by the Applicant.

[35] The Applicant's submissions appear to advance the following as the reasons for seeking Commissioner Williams' recusal:

• Commissioner Williams did not provide reasons to explain his decision in the interlocutory decision, and thus was not open and transparent, and appeared arrogant;

• The Applicant concluded that Commissioner Williams "was likely biased"; as Commissioner Williams' associate responded to the Applicant's request to Chambers for further reasons to explain the interlocutory decision:

  • without providing further reasons; and

  • in a way that the Applicant found "to be curt and conveyed a disdain for me that I should dare enquire";

• The Applicant considered that appealing the interlocutory decision created a risk that Commissioner Williams would be biased against him, and that concern has not been alleviated by the Commission;

• Commissioner Williams has failed to censure the Respondent for lying.

[36] The Respondent submits it is not apparent from the Applicant's submissions whether he seeks Commissioner Williams' recusal on the ground of actual or apprehended bias (or both). The Respondent's submissions proceed on the basis that recusal might be sought on both grounds.

[37] In the present matter the Applicant sought and was granted leave to appeal the interlocutory decision, but his appeal was dismissed with no criticism by the Full Bench of Commissioner Williams' approach to determining the interlocutory decision.

[38] The Respondent submits the mere fact that a party appeals an interlocutory decision is not sufficient to give rise to an apprehension of bias. That the Applicant's unfair dismissal application remained in Commissioner Williams' list after the Applicant sought to appeal the interlocutory decision is entirely orthodox.

[39] The Respondent submits Commissioner Williams could only properly conclude that the conduct of the Respondent in connection with this matter involved lying if,

• relevant evidence to that effect was tendered and admitted;

• the Respondent was given an opportunity to be heard on that evidence; and

• the Commissioner made factual findings, having had regard to the evidence.

[40] Any adverse finding about the Respondent, and censure of the Respondent, by the Commissioner ahead of these steps being taken would be premature, and could constitute evidence of actual bias against the Respondent and in favour of Mr Gibbens.

[41] As Commissioner Williams has not acted inappropriately in failing to censure the Respondent, any such alleged failure to do so cannot give rise to reasonable grounds for perceiving that Commissioner Williams might not bring a fair, impartial and independent mind to the determination of the unfair dismissal application on its merits.

[42] These matters can be argued to militate against the test for apprehended bias being satisfied.

[43] In summary Mr Gibbens' arguments in support of his recusal application are that,

1. For me to hear and determine Mr Gibbens' application that I recuse myself is contrary to the principles of Natural Justice/Procedural Fairness.

2. I failed to be open and transparent because of the limited reasons in my interlocutory decision regarding representation.

3. He found my emailed reply to his request that I provide a statement of reasons for my decision to be curt and conveying a disdain for him that he should dare enquire and again was not open and transparent.

4. Appealing the interlocutory decision created a risk that I would have a biased regard for him in his unfair dismissal remedy application. He expressed this concern at the appeal hearing however Vice President Hatcher did not address his concern and he has not heard anything from the Commission that would cause his concern to be alleviated.

5. In the 5 October 2017 hearing he made the point that the Respondent has been lying and I know they have been lying because I have a copy of his letter dated 16 December 2016 which pointed to six falsehoods made by the Respondent and which are incontrovertibly demonstrated by the supporting documents. However, in spite of this knowledge, I in that hearing further fuelled concerns about bias by saying nothing to the Respondent in the way of censure or direction about truth.

[44] Below I will identify the applicable principles to be applied in an application such as this and apply these to the circumstances of this case.

[45] In the case of Loretta Woolston v The Uniting Church in Australia Property Trust (Q.) t/a Blue Care Bli Bli Aged Care Facility [ [2016] FWCFB 278] a Full Bench of the Commission considered an appeal of two decisions made by Deputy President Asbury. The first decision declined the appellant's recusal application and the second rejected her unfair dismissal application. With respect to the appeal of the first decision the Full Bench said as follows,

"[9] With regard to the decision by the Deputy President not to recuse herself, the appellant submitted that the Deputy President was in error in "investigating" herself. As she put it:

"Public expectation is rife these days about people who cannot investigate themselves without being inept and corrupt."

[10] We are satisfied that the Deputy President dealt with the recusal application appropriately. It is incumbent on a member of the Commission, on receiving an application such as the one made by the appellant, to hear the application and consider whether there are grounds to recuse oneself from dealing with the matter. In the Australian legal system, any application that a decision-maker, whether a judge of a court or a member of an arbitral or administrative tribunal or a person conducting an inquiry, should recuse himself or herself from hearing and deciding a matter on the ground of actual or apprehended bias is to be made and determined in the first instance by the decision-maker. The Deputy President acted consistently with this practice. Moreover we are satisfied that the Deputy President made no errors in making her decision to dismiss the application. We are not satisfied that the grant of permission to appeal the Deputy President's decision regarding the appellant's recusal application would be in the public interest. To the extent that s.400(1) may not be applicable to the recusal decision, we do not consider that there is any discretionary basis to grant permission to appeal. Permission to appeal is therefore refused." (Reference omitted)

[46] The applicable principle explained by the Full Bench is that an application that a decision-maker should recuse themselves from hearing and deciding a matter on the ground of actual or apprehended bias is to be heard and determined in the first instance by that decision-maker.

[47] This principle was explained to Mr Gibbens at the directions hearing on 5 October 2017.

[48] There is no basis for Mr Gibbens to complain that I shall hear and determine the application that he has made that I recuse myself. That is normal and is the approach which I am required to follow.

[49] With respect to a judicial officer being disqualified from hearing a matter because of an allegation of actual bias the Full Court of the Federal Court emphasised the seriousness of such an allegation in Spirits International B.V. v Federal Treasury Enterprise (FKP) Sojuzplodoimport [[2013] FCAFC 106] as follows,

"13.We commence with the proposed case on actual bias. An allegation of the kind proposed is a very serious one. It is, surely, about as serious an allegation as any that could be made against a judicial officer. We would associate ourselves with what was said on this subject by Cole JA in the unreported judgment of the New South Wales Court of Appeal, given on 7 April 1995, in Ramadan v New South Wales Insurance Ministerial Corporation, namely, that a finding of actual bias "involves a finding of judicial impropriety, and probably of judicial misconduct. It involves a finding of breach of the judicial oath." Making a distinction between apprehended bias and actual bias, his Honour also said:

Actual bias, in those circumstances, would involve a finding that the judicial officer did not attend properly to the evidence, but rather reached a decision determined by reference to previously expressed views. It involves a finding that the judicial officer was in fact unable to, and did not, comply with his judicial obligations.

Although ultimately a conclusion by way of inference may be involved, the facts upon which the Court will be invited to draw such an inference must, we would hold, be set out with particulars no less fulsome than would be required to support an allegation of fraud. Do the particulars contained in para 4 of the proposed rejoinder satisfy this requirement?"

[50] Previously the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SGJB [[2003] FCAFC 290] held there must be clear evidence of claimed actual bias,

"[20] The primary judge held that the RRT's decision was invalid and should be set aside on the basis of actual bias. In essence the primary judge relied upon what might be thought to be a lack of procedural fairness in the process adopted by the RRT (see below) and what the primary judge concluded were factual errors in its analysis so as to reach the conclusion that the RRT had been biased. In our view the primary judge was in error in reaching the conclusion that the RRT was affected by actual bias. The situation is analogous to that in Minister for Immigration and Multicultural Affairs v SCAR (2003) 198 ALR 293 at [18]. In our view a claim of actual bias must be established by evidence. We do not deny that in a particular case an inference of actual bias could be made from evidence limited to factual errors in reasoning combined, perhaps, with an unfair process. However, the relevant errors and the lack of procedural fairness would have to be so extreme that no other reasonable inference except actual bias was reasonably open. Obviously enough that is going to be a very rare case. Plainly enough, it is not this case."

[51] Whilst it is not entirely clear in this matter I believe what Mr Gibbens is submitting is that I should recuse myself on the grounds of apprehended bias. However if I am wrong on that and he indeed is pressing this recusal application on a ground of actual bias then it must be understood that Mr Gibbens' claim of actual bias must be established by evidence.

[52] In this matter there has been no evidence provided by Mr Gibbens of actual bias or upon which an inference of actual bias could be drawn. Actual bias has not been proven and is not a ground on which I should recuse myself.

[53] The general principles relating to disqualification for apprehended bias as explained by a Full Bench of the Commission in United Voice v Broadspectrum (Australia) Pty Ltd T/A Broadspectrum [ [2017] FWCFB 871] at [29], were summarised by the Federal Court (Middleton J) in Kirby v Centro Properties Limited (No 2) [[2011] FCA 1144] as follows:

"7. The principles to be applied are well settled.

8. The principles respecting disqualification for apprehended bias represent a balance between two competing policy considerations, namely the maintenance of public confidence in the judicial system, by ensuring that the public perceive that cases are decided only by reference to the evidence before the court, and the need for judges to discharge their duties unless good reason is shown.

9. The apprehension of bias principle is stated in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] where Gleeson CJ, McHugh, Gummow and Hayne JJ said (subject to qualifications relating to waiver and necessity):

...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.

10. The question is one of possibility (real and not remote), not probability. If there is an appropriate apprehension of bias, then the judge must disqualify himself or herself, no matter what case management considerations arise in the efficient and effective determination of a proceeding.

11. In Ebner, the majority in the High Court affirmed that the application of this test involves two steps. First, there must be identification of what it is that might lead a judge to decide the particular questions before him or her other than on the merits. Second, having identified the factors or circumstances that might influence a departure from meritorious decision-making, it is "no less important" to articulate the "logical connection" between those factors and the fear that the judge might not apply proper judicial method (that is, merits based decision-making) in resolving the controversy on the facts and the law (at [8]).

12. The mere fact that a judge has made a particular finding on a previous occasion does not necessarily give rise to an apprehension of bias. Nevertheless, in some situations previous findings may lead to disqualification and "what kind of findings will lead to relevant apprehension of bias must depend upon their significance and nature": Gascor v Ellicott [1997] 1 VR 332 at 348 (Ormiston JA); see also at 342 (Tadgell JA with whom Brooking JA agreed); and see Cabcharge at [34].

13. However, as the majority observed in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283, the lay observer is the "yardstick", and in this regard:

...the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature (at [139]). (Original emphasis.)

14. The application of these principles does not change merely because a judge expressly acknowledges at the hearing of the first proceeding that different evidence may be led in the later proceeding, casting new light on the facts he or her had found in the previous proceeding. This is assumed to occur in any event. Such an acknowledgment does not necessarily remove the impression created by reading the earlier judgment that the views there stated might influence the determination of the same issue in a later judgment: see Laurie at [145] per Heydon, Kiefel and Bell JJ.

15. These principles must be carefully applied. It has been said that: "... disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party": Cabcharge at [32]; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J).

16. Needless to say, disqualification of a judge by reason of prejudgment must be "firmly established": Cabcharge at [25]; Re JRL at 352. Judges should not accede too readily to recusal by reason of apprehended bias.

1. 17. To apply these principles in any given case is a matter of judgment and evaluation depending on the exact circumstances. Undoubtedly, the question of an apprehension of bias requires one to focus on the issues that the judge is called upon to decide - see eg British American Tobacco Australia Ltd v Gordon (2007) NSWSC 109 at [97] per Brereton J. No strict approach should be taken in identifying the legal and factual issues. The issues before a judge sought to be disqualified may well be different in some respects to those issues determined in the earlier proceeding. At the core of the inquiry is an examination of the legal and factual issues on foot and the extent to which previous findings may, in the eyes of the fair-minded lay observer, impact on the judge's ability to decide the matter other than on its merits.

18. Because the test of apprehended bias involves "a fair-minded lay observer" who is observing a judge, the assumed characteristics of each need to be considered.

19. A judge is trained and is required "to discard the irrelevant, the immaterial and the prejudicial": see Vakauta v Kelly (1988) 13 NSWLR 502 at 527 (McHugh JA), adopted in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585 (Toohey J); Johnson v Johnson (2000) 201 CLR 488 at [12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); and Laurie at [80] (Gummow J); and at [140] (Heydon, Kiefel and Bell JJ).

20. As to the "reasonable observer", in Laurie at [145], Heydon, Kiefel and Bell JJ affirmed that a reasonable observer would note the possibility of the evidentiary position changing between the previous proceeding and the subsequent proceeding.

21. In R v Burrell (2007) 175 A Crim R 21; [2007] NSWCCA 79 at [11], McClellan CJ at CL (with whom the other members of the New South Wales Court of Criminal Appeal agreed) stated that:

The ordinary fair minded person understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge.

22. In Sengupta v Holmes [2002] EWCA Civ 1104, at [35]-[37], Laws LJ (Jonathan Parker LJ agreeing) stated that the fair-minded observer would recognise that a professional judge would be capable of departing from an earlier expressed opinion.

23. However, as I have indicated, applying these principles will be a matter of judgment and evaluation in the circumstances. The application of these principles to particular facts in earlier authorities, concerning as they do, the particular circumstances that may or may not have lead a judge to be disqualified, are not to be elevated to the "principles" to be applied. Nor is the application of the principles in any given case to be used as a gloss upon those principles. As the authorities demonstrate, including Laurie, the principles are relatively well established, but in the application of these principles reasonable minds may differ as to the result."

[54] A reasonable apprehension of bias involves deciding whether a "fair-minded lay observer" might reasonably apprehend that the decision maker would not decide a case impartially and without prejudice.

[55] It is not bias where a decision maker decides a case against the interests of one party.

[56] While it is important that justice must be seen to be done, it is of equal importance that Commission members discharge their duty to hear the evidence and decide the matter. This means that they should not accept the suggestion of apprehended bias too readily.

[57] With respect to Mr Gibbens' argument that I failed to be open and transparent because of the limited reasons in my interlocutory decision regarding representation it is correct as the Respondent has pointed out that in its review of my decision the Full Bench raised no concerns with the brevity of that decision.

[58] It perhaps needs to be appreciated that the decision regarding representation was not a discretionary decision where I was empowered to choose between two alternatives. Rather it was a decision that simply involved recognising a legal right enshrined in the legislation. This was that section 596(4)(a) of the Act applied and the Respondent consequently does not require permission to be represented by an AGS lawyer.

[59] I do not agree that the decision in all the circumstances would cause a fair-minded lay observer to question my impartiality in dealing with Mr Gibbens' unfair dismissal remedy application in the future.

[60] Before considering Mr Gibbens' argument that my emailed reply to his request that I provide a statement of reasons is a ground for me to recuse myself it is I think relevant to set out the principles that apply to the Commission when dealing with ex parte communication.

[61] The Full Bench decision of Construction, Forestry, Mining and Energy Union v LCR Group Pty Ltd [ [2016] FWCFB 916] considered the question of ex parte communications creating a reasonable apprehension of bias and set out the principles as follows,

"[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. We reached that conclusion for four reasons arising from the context and content of the communications:

(1) The Senior Deputy President had, at the time of the ex parte communications, wholly determined all the grounds of objection to the approval of the variation raised by the CFMEU. There had been no appeal from his decision in that respect. The CFMEU had not agitated any issue concerning the execution of the variation to the Agreement, despite it apparently having access to the application and constructive knowledge of Sustaining Works. Therefore, whether the subject matter of the ex parte communications was to be characterised as merely procedural or substantive in nature, those communications did not concern an issue then in contest between the parties. To that extent, no perception of partiality might reasonably arise.

(2) At no stage did the Senior Deputy President say anything to the effect that he would decide the signature issue, including any attempt to rectify the problem by way of an amendment, in a particular way. Nor did we consider that an implication to that effect might reasonably be drawn from what was said.

(3) The Senior Deputy President made it clear in the course of the communications with LCR Group's legal representative that any application to amend in order to rectify the perceived signature problem would have to be copied to the CFMEU. That obviously implies that the Senior Deputy President intended to provide the CFMEU an opportunity to be heard in relation to the issue. Thus nothing was conveyed which might reasonably suggest that the signature issue would be resolved in other than an open process.

(4) The revised signature page which the Senior Deputy President sent to LCR Group's legal representative could not be taken as expressive of his personal view as to what was necessary to resolve the problem, since there is no dispute that it reproduced what was done to satisfy the Full Bench in Sustaining Works. We did not consider that identification to a party of an approach or a proposition supported by the relevant Full Bench authority might reasonably be perceived as demonstrative of any impartiality.

[33] Consequently we concluded that the Senior Deputy President was correct not to recuse himself, and accordingly we dismissed the appeal." (Reference omitted)

[62] Whilst I note the Respondent has not asserted any of my actions raise questions of apprehended bias against its interests the act of Mr Gibbens contacting me ex parte through my chambers as he did and requesting I provide further reasons for my interlocutory decision in the particular manner he did, arguably was sufficient to satisfy the first step of the two-step test in Ebner.

[63] The relevance of this is that whilst Mr Gibbens complains about the style of my emailed response to his ex parte request there are very good reasons why the Commission should be reluctant to and extremely cautious about responding to any ex parte communication and even more cautious about responding positively to an ex parte request that the Commission act in any particular way. This is not a criticism of Mr Gibbens who as an unrepresented litigant cannot be expected to be aware of these principles explained in the case law above however these principles are ones that the Commission is still required to follow.

[64] In this instance it was not appropriate to agree to his request that I provide a statement of reasons for my decision to rename the Respondent as the Commonwealth. I note that in his request on 21 April 2017 he raised no concern about my decision to the extent that it dealt with the question of representation.

[65] I do not agree that in all the circumstances my refusal to provide a statement of reasons as requested by Mr Gibbens nor the wording of the response emailed to him would cause a fair-minded lay observer to doubt my impartiality in dealing with Mr Gibbens' unfair dismissal remedy application in the future.

[66] As to Mr Gibbens' argument that appealing my interlocutory decision created a risk that I would be biased in future against him it should be observed that in this Commission and in many other tribunals and courts it is very common that parties appeal a decision of a commissioner, judge or tribunal member and find themselves subsequently having their case heard and determined by that same person. This can arise in circumstances where that party has been either successful or unsuccessful in their appeal. This is a commonplace and unremarkable circumstance.

[67] A fair-minded lay observer would not doubt my impartiality in dealing with Mr Gibbens' unfair dismissal remedy application in the future merely because he has appealed my interlocutory decision.

[68] Finally turning to Mr Gibbens' argument that my not having censured the Respondent or directed them about the truth after he made the statement at the directions hearing on 5 October 2017 that the Respondent's representative "...is prepared to lie quite openly" fuelled concerns about bias.

[69] It is apparent from the transcript of that hearing that this statement Mr Gibbens made was nothing more than a bald assertion that someone was prepared to lie. As the transcript shows Mr Gibbens made no reference to his letter of the 16 December 2016.

[70] In any event that letter of 16 December 2016 which makes numerous assertions of different kinds against the Respondent forms part of a bundle of documents provided by Mr Gibbens in support of his unfair dismissal remedy application.

[71] The hearing on 5 October 2017 was listed as a directions hearing to deal with other associated applications Mr Gibbens had made where he was seeking for the Commission to issue orders to produce documents and orders for persons to attend future hearings to provide evidence. That directions hearing however morphed into a discussion with Mr Gibbens about the fact that he apparently was still wishing to press his recusal application.

[72] Mr Gibbens' letter of 16 December 2016 has not yet been dealt with by the Commission and I at this stage have not formed any view at all about what Mr Gibbens asserts in that letter.

[73] As the Respondent has submitted for the Commission to "know" the Respondent has been lying much more would be required than has occurred at this stage. Evidence in support of what Mr Gibbens asserts or alleges in his letter would be required to been given under oath, tested in cross-examination and that evidence then considered alongside any other documentary or witness evidence the Respondent may wish to bring in response. Both parties would then have an opportunity to make submissions as to what conclusions or findings the Commission should come to on the basis of all this evidence. Only after this, and only if the these matters are relevant to the determination of Mr Gibbens' unfair dismissal remedy application, findings may be made by the Commission regarding what is asserted or alleged in the 16 December 2016 letter. None of this has yet occurred.

[74] I have no view as to whether or not the Respondent has lied as alleged by Mr Gibbens. Consequently it would have been entirely wrong for me to have censured the Respondent as Mr Gibbens argues I should have.

[75] A fair-minded lay observer would therefore have no basis to doubt my impartiality in dealing with Mr Gibbens' unfair dismissal remedy application in the future because I have not censured the Respondent nor said anything to them about these matters.

[76] As explained above there is no proper basis on which I should recuse myself from further hearing Mr Gibbens' unfair dismissal remedy application. Consequently Mr Gibbens' application that I recuse myself is hereby dismissed.

[77] The parties will be contacted in due course regarding further programming of the unfair dismissal remedy application.

V Masters from Australian Government Solicitor on behalf of the Respondent.

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