The respondent's case related to an injury said to have been suffered on 25 March 2009, affecting his cervical spine and right shoulder. (The appellant's solicitor, Mr Paul H Macken, stated in an affidavit sworn on 26 September 2017 that the alleged injury occurred on 29 June 2009; that date appears to have been taken from a medical assessment certificate, but it is common ground that the date is wrong.) A first set of proceedings was commenced in the Commission by the respondent in 2012, and was discontinued in March 2014. A second set of proceedings was commenced in August 2014.
On 11 August 2014 the Commission conducted a telephone conference involving Mr Macken on behalf of Inghams, and Mr Dougall on behalf of the respondent. The conference was conducted by Mr Snell, who was then a senior arbitrator. According to the written submissions filed by the appellant in this Court, Mr Macken had made a report to Inghams in relation to the telephone conference. In that report he had "included a statement by Senior Arbitrator Snell that there was no real issue as to 'injury'." [3] It was on the basis of that comment that the appellant submitted in the Commission that Mr Snell, now a Deputy President of the Commission, should not sit on the appeal brought by the appellant from the decision of the arbitrator of October 2016.
The application for the Deputy President to recuse himself was made in response to a direction given by him to the parties noting his involvement in the earlier proceedings (which had been resolved by agreement on 25 September 2014), inquiring if either party objected to his involvement in the appeal and, if so, requesting that it advise the basis of the objection. The appellant's objection, raised in an email of 20 March 2017, stated that recusal of the Deputy President was appropriate "in view of his involvement in the previous proceedings as Senior Arbitrator and comments made at that time." [4]
The Deputy President responded by email on the same date noting that (i) the only orders made by him in the earlier proceedings had been procedural, (ii) the proceedings had been resolved by consent on 25 September 2014 and (iii) he had "no recollection of the earlier proceedings." [5] The email stated a tentative view that withdrawal would not be appropriate and required that any party seeking to make an application for recusal should advise his associate the following day and should "lodge evidence relevant to any such application". [6] What happened thereafter was recorded by the Deputy President in his reasons for decision in the following terms:
"[27] On 21 March 2017 the appellant advised that it sought to make a recusal application. The matter was listed for telephone conference on 31 March 2017 for this purpose. The parties were directed to lodge and serve any documents on which they intended to rely, prior to the close of business on 24 March 2017. No material was lodged by either party. At the telephone conference Mr Macken, solicitor, appeared for the appellant, and Mr Dougall, solicitor, appeared for the respondent. The respondent himself attended by telephone.
[28] Mr Macken said the application was made on the basis of 'apprehended bias'. He referred to the following:
(a) Leave for some of the Direction for Production Orders, sought by the appellant in the earlier proceedings, had not been granted.
(b) The order for leave to serve a Notice for Production for wages material, and compliance with that Notice, was opposed by the appellant.
(c) The appellant's solicitor said that, when reporting to his client about the telephone conference of 11 August 2014, he had referred to a statement by me that there was no real issue regarding 'injury'.
[29] Mr Macken said that the two orders referred to at (a) and (b) of the previous paragraph were contrary to the respondent's position. He submitted that 'injury' remained in issue in the current proceedings.
[30] Mr Dougall opposed the recusal application. He said it had been the position of the respondent that there was no real issue regarding 'injury'. He had no recollection or file note, going to the accuracy or otherwise of what was put by the appellant. I indicated that I had no recollection, and there should be an evidentiary basis for the application. On enquiry, solicitors for both parties said that the evidence going to 'injury' was different now, to that at the time of the telephone conference in the earlier proceedings. There were further medical reports and clinical records. I note that, since 2014, the respondent qualified medical evidence from Dr Bodel (reports dated 7 January 2015 and 25 February 2015), and the appellant from Dr Edwards (two reports dated 20 April 2015). This evidence, on both sides, went to the 'injury' issue."
In dealing with the application, the Deputy President set out a number of statements as to the relevant principles and commenced his consideration of the application in the following passage: [7]
"The appellant did not put on any evidence, in support of its application. In dealing with the application, I do so on the basis of the appellant's case at its highest, that is assuming that the appellant could put on evidence, consistent with what Mr Macken said he had advised his client, about what was said in the prior proceedings."
The Deputy President referred to the functions of an arbitrator and noted the terms of s 355 of the Workplace Injury Act which reads as follows:
355 Arbitrator to attempt conciliation
(1) The Commission constituted by an Arbitrator is not to make an award or otherwise determine a dispute referred to the Commission for determination without first using the Arbitrator's best endeavours to bring the parties to the dispute to a settlement acceptable to all of them.
(2) No objection may be taken to the making of an award or the determination of a dispute by an Arbitrator on the ground that the Arbitrator had previously used the Arbitrator's best endeavours to bring the parties to the dispute to a settlement.
Based on the file held by the Commission, the Deputy President noted that he had dealt with two procedural applications at the telephone conference on 11 August 2014. These were disposed of as follows:
"[24] … On an application by the appellant for leave to issue Directions for Production of documents, I granted leave in respect of six of those sought, and refused leave in respect of three. On 12 August 2014 I issued a Direction, giving leave to the respondent to serve a Notice for Production of wages material, and directing the appellant to comply with that Notice."
The Deputy President reached his primary conclusion, based on the assumption that he had said "that there was no real issue regarding 'injury'", in the following passage: [8]
"The view was not expressed in a decision. It is quite unlikely (and evidence does not suggest) that it was other than a 'tentative view', expressed during a telephone conference. It would not 'give rise to the possibility of bias in the mind of a fair-minded observer' (Duncan at [151]). [9] For this reason the recusal application should be refused."
He then considered whether, if he were wrong in that respect, there was any logical connection between the expression of opinion and the matters to be determined on the appeal. In that regard he concluded: [10]
"I was informed by the parties that the evidence is no longer the same, there are further medical reports and clinical notes. An additional doctor has been qualified on each side of the record (Dr Bodel and Dr Edwards), both of whom comment on 'injury'. I will not be dealing with the matter as a first instance decision maker, rather I will be determining an appeal in accordance with s 352(5) of Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), limited to the identification and correction of error. There has been no 'articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making'. In my view, such a connection could not be made out, having regard to the circumstances in which the relevant statement was made, and the decision making task I am required to carry out in the current proceedings."
[2]
Appeal to this Court
The proceedings in this Court were commenced by way of an application for leave to appeal. There was no dispute that the amount in issue was likely to be in excess of the amount below which leave was required pursuant to s 353(4) of the Workplace Injury Act. Accordingly, leave was granted and the appellant was directed to file the draft notice of appeal contained in the white folder. The draft notice of appeal contained a single ground in two parts in the following terms:
"The Deputy President erred in law by:
a. failing to disqualify himself on the grounds of apprehended bias; and
b. making the decision below in circumstances where a fair-minded lay observer might reasonably apprehend that the Deputy President might not bring an impartial and unprejudiced mind to the resolution of the question he was required to decide."
There was no further relevant material placed before this Court. There was, for example, no documentation as to the issues in the earlier proceedings in the Commission dealt with by Mr Snell as a senior arbitrator; nor as to the issues raised at the telephone conference on 11 August 2014. Further, there was no challenge to any aspect of the reasoning of the Deputy President in rejecting the recusal application, other than the final conclusion that no reasonable apprehension of bias had been demonstrated.
There was no dispute as to the relevant legal test. As explained in Johnson v Johnson, [11] the question is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide." It was not submitted that a different test should apply to the Deputy President of the Commission, although it was accepted that the application of the test must have regard to the statutory function of an arbitrator and the role played by a Deputy President on an appeal.
Although the test of apprehended bias is relatively relaxed in its terms, care must be taken in its application in two respects. First, as noted in Livesey v New South Wales Bar Association: [12]
"If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court."
A similar view was expressed in Western Australia v Watson, [13] noting that "the duty of the judge to disqualify himself for proper reasons is matched by an equally significant duty to hear any case in which there is no proper reason to disqualify himself." [14]
The second matter of principle is encapsulated in the second finding made by the Deputy President relating to the logical connection between the basis of the apprehension and the nature of the proceedings from which recusal is sought. In Michael Wilson & Partners Ltd v Nicholls, [15] the joint reasons in the High Court stated:
"In Ebner v Official Trustee in Bankruptcy, the plurality pointed out [16] that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And secondly, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. … [T]he bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making."
There is one further factor which needs to be addressed directly. Although the Deputy President noted on more than one occasion that no evidence had been presented in support of the recusal application, he did not dispose of the application on that basis. While there may be difficulties in presenting evidence of some kinds of apprehended bias, particularly where the application is based on extra-curial statements, as in CUR24 v Director of Public Prosecutions, [17] this was not such a case. Further attention might have been given to the basis of the application.
[3]
(1) identifying the issues
The ground in the draft notice of appeal did not particularise any specific matter said to give rise to the apprehension of bias. However, it became clear in the course of submissions that three matters of complaint were relied upon. Although not strictly accurate, it is convenient to identify each of these three matters in turn and describe them as "grounds".
It is tolerably clear that the sole focus of the recusal application before the Commission was the comment supposedly made by the Deputy President in the earlier proceeding during the telephone conference on 11 August 2014. That was the sole issue addressed in his reasons and there was no complaint that some other issue had been raised which had not been addressed. This was the first ground relied on in the appeal.
In written submissions dated 26 July 2017, primary reliance was placed on the first ground, but a second ground was raised, namely an allegation that the error in the Deputy President declining to recuse himself "was compounded by [his] subsequent conduct of the appeal." [18] This complaint was further articulated in terms alleging that the Deputy President: [19]
"a. intervened to invite submissions on an authority that he ultimately held was decisive in Mr Belokoski's favour;
b. in the course of dealing with those subsequent submissions, restricted Inghams to a narrow and technical reading of its appeal grounds, narrower even than the way Mr Belokoski's counsel appeared to approach them;
c. did not propose an oral hearing so that such matters could be ventilated in full."
It is convenient to refer to these factors within ground 2 as issues (a), (b) and (c).
There was a hint in the appellant's written submissions of a third ground, namely that Mr Snell's role as a conciliator at the time of the telephone conference on 11 August 2014 was somehow relevant to (in the sense of aggravating) the expression of opinion as to whether injury was then in issue. [20] However, the relevance of the fact that he was acting as a conciliator was not articulated in those submissions. This matter was first given emphasis in the appellant's submissions in reply dated 13 November 2017 where it was stated: [21]
"First, one critical matter overlooked entirely by the respondent's submissions is that Arbitrator Snell (as he then was) did not just express views in the Snell Procedural Hearing - he managed those proceedings to resolution, including by holding the Snell Conciliation/Arbitration Proceeding and making consent orders to bring the proceedings to an end. That puts him in a materially different position from the common situation of a judge who expresses views in the course of case management."
Nothing is achieved by capitalising labels as to stages in the hearing, nor by labelling a step in the proceedings with the name of the arbitrator, which was inappropriate. Whatever the substance of the "critical matter" it was no doubt overlooked by the respondent because it had not at any earlier point been identified in clear terms. Once clearly identified, it was revealed as a matter not raised before the Deputy President. It will be addressed as ground 3.
[4]
(2) ground 1 - statement at 11 August 2014 tele-conference
The first ground relied upon a comment said to have been made by the Deputy President as arbitrator in the course of a telephone conference. The comment was supposedly reported by Mr Macken to his client following the telephone conference. However, it was not the report which was relevant, but the substance of the comment. Mr Macken did not swear an affidavit in the proceedings before the Commission; nor did he give oral evidence. Mr Macken was and remains the solicitor for the appellant. It may be inferred that Mr Macken had no memory of the comment and was relying upon a "report" to his client. If there had been a record of the report, it should have been put in evidence. It was not. In written submissions in this Court, the appellant stated that it was seeking a transcript of the telephone conference; none was produced, probably because none exists.
In these circumstances, it would have been open to the Deputy President to dismiss the application on the ground that there was no evidential basis for concluding that such a comment was made. A different course might have been appropriate had there been conflicting evidence. [22] In any event, that course was not taken, the Deputy President assuming that he had in fact made such a remark.
However, the appellant's difficulty was not restricted to the lack of evidence. The basis on which the application was made provided no context for the alleged comment that injury was not in issue. It may have been a reference to pleadings; to evidence (as it then stood); to a statement by one party not contradicted by another - the possibilities are various. Without the context, it would be pure speculation to draw any inference from the comment. A fair-minded observer would not do so. The application could and should have been rejected on that basis.
[5]
(3) ground 2 - the three compounding issues
The three issues identified at [22] above will be addressed in turn. However, generally the ground is problematic. First, as it was said to "compound" the error in failing to recuse based on the statement, it can provide no weight to that which was not erroneous. Secondly, none of the items identified in the written submissions involved an error of law. So much was conceded. How they could provide any basis for supporting a reasonable apprehension of bias, even if the statement carried the connotation relied on by the appellant is obscure.
As to (a), the "authority" referred to was the reasoning of the High Court in Michael Wilson & Partners. The idea that a tribunal demonstrates a possibility of prejudgment by drawing the attention of one party to an authority which may be against its position is hard to comprehend.
The complaint in (b) that Inghams was restricted to "a narrow and technical reading of its appeal grounds", but in a manner which counsel conceded was available, also bears little (if any) relevance to a claim of bias by way of prejudgment. In fact, the premise was not sound. The relevant ground alleged apprehended bias on the part of the arbitrator who made the determination from which the appeal was brought to the Deputy President. The ground alleged that bias was demonstrated by the failure of the arbitrator to engage properly with the evidence, engage properly with the appellant's submissions, constructively failing to exercise jurisdiction and failing to give adequate or sufficient reasons.
The Deputy President dealt with this ground on two bases. First, he described it as misconceived, noting that "[t]he submissions do not direct themselves to identifying anything done or said by the Arbitrator, which might lead to a reasonable apprehension that she might not bring an impartial and unprejudiced mind to resolution of the question she was required to decide." [23]
The second basis on which the Deputy President rejected the ground was expressed in the following terms: [24]
"The High Court in Nicholls dealt with the extent to which, in dealing with an issue of apprehended bias on appeal, when a case has been decided, it is permissible to have regard to the reasons given by the judge."
After setting out a passage from the joint reasons in Michael Wilson & Partners v Nicholls, the Deputy President noted that the appellant's submissions were "contrary to the clear statements of principle in Nicholls." [25] There is a lesson in this statement which the appellant still fails to acknowledge, as will be explained below.
Before dealing with that matter it is necessary to dispose of the complaint that the Deputy President gave a "narrow and technical" reading to ground 2 in the notice of appeal before him, by treating it as a ground restricted to a complaint of apprehended bias, which was precisely how it was expressed. After dealing with the matter in the terms set out above, the Deputy President noted that in "further written submissions" the appellant sought to identify the complaints about the conduct of the arbitrator as themselves involving independent grounds. The Deputy President described the argument as "new." [26] He noted that the respondent's submissions did not deal with the ground as involving separate stand-alone errors. He noted that the appellant had not sought to amend its grounds of appeal and should not be permitted to do so by way of further written submissions. [27] This was not a narrow and technical approach: it was recognition that the appellant was seeking to substitute four separate grounds for one dealing with apprehended bias in a way which was apt to cause procedural unfairness to the respondent. How such a course could demonstrate prejudgment on the part of the Deputy President is utterly obscure.
Even if that were not so, the first basis of rejection, namely that the submissions did not direct themselves to identifying anything done or said by the arbitrator which would support the ground, would presumably apply to the ground as recrafted. Nothing was said in this Court to demonstrate that that was not so.
It is appropriate to return to what the Deputy President said in relation to Michael Wilson & Partners. It is convenient to set out in full the passage relied upon by the Deputy President, which read as follows: [28]
"As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been 'the crystallisation of that apprehension in a demonstration of actual prejudgment' [29] impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment."
That reasoning applied equally to the course taken by the appellant in this matter in pursuing ground 2 here. The invitation to this Court to conclude that what happened before the Deputy President "compounded" the failure to recuse himself at the outset of the hearing, was an open invitation to commit the very error which had been identified by the High Court in Michael Wilson & Partners. Counsel sought to avoid this conclusion by contending that one could properly look at the procedure adopted in the Commission, but not at the outcome. No doubt it is possible that events may occur in the course of a hearing which may themselves provide grounds for a recusal application; that was not this case. What the appellant sought to do in support of this ground was to sift through the Deputy President's reasons for decision and light upon aspects of the reasoning which, it was conceded, did not reveal any error of law, and seek to use these to demonstrate that the initial apprehension of bias was confirmed. Whether or not that was what this Court did in Michael Wilson & Partners, it is beyond doubt that, as the High Court categorically stated, such an approach is fallacious.
The third point, (c), relies on the failure of the Deputy President to "propose" an oral hearing so that "such matters" could be ventilated in full. That was a manufactured complaint. The appellant had sought an oral hearing before the Deputy President when filing its notice of appeal. That application had been refused and there is no complaint as to that refusal. No occasion arose to repeat the application until after judgment had been delivered. It is to be recalled that the matter sought to be "ventilated in full" was the refusal to allow the appellant to recast its ground of appeal without any application to amend. The appellant could not claim it had been denied procedural fairness; on the other hand, had the Commission allowed the appellant to recast its submissions in the way it proposed, at least without a further hearing, the respondent would have been denied procedural fairness. The refusal of the Commission to "propose" the course now thought appropriate by the appellant after the event cannot possibly give rise to an apprehension of prejudgment.
[6]
(4) ground 3 - managing the conciliation hearing
At the heel of the hunt, but in keeping with the strategy of changing course at the very last moment, the appellant sought to rely upon the fact that as conciliator, the Deputy President had "managed" the earlier proceedings to resolution. There was no direct evidence that he had done anything of the sort; nor was it explained what steps he had taken (if any) to achieve a consensual outcome of the earlier proceeding. How such a course, whatever it may have involved, could form the basis of a reasonable apprehension of prejudgment was not explained, no doubt because the factual basis was unknown. The matter was resolved by consent, and there was no evidence that it was resolved against the appellant's interests.
There was evidence that there was a telephone directions conference at which interlocutory orders were made. There was also evidence, in the sense that certain matters could be gleaned from the procedural history set out by the Deputy President, based on his access to the Commission's files, that there was a further "conciliation conference/arbitration hearing" on the date on which the consent orders were entered, namely 25 September 2014. There is no other evidence as to what happened on that date.
Assuming that some steps were taken by the arbitrator on 25 September 2014 which involved active management of the case through a process of conciliation, the appellant was confronted by the statutory provision in s 355(2) of the Workplace Injury Act set out at [8] above. In other words, the fact that an arbitrator has used his or her best endeavours to bring about a settlement will not form the basis of a challenge to an award or determination if conciliation fails and an arbitrated outcome is required.
The appellant's response was that the position of a Deputy President dealing with an appeal from an arbitrator is not so immune from a challenge. Even accepting the submission at face value, it does not follow that involvement in conciliation was sufficient without more to give rise to a reasonable apprehension of bias. In any event, the conciliation in the earlier proceeding was successful; but if it had not been, Mr Snell could properly have proceeded to make an award. Why his role in determining an appeal would be subject to tighter constraints of propriety was not explained. The provision is a contextual factor which the fair-minded observer would have been entitled to take into account.
In these circumstances, there is no purpose in addressing the respondent's complaint that, had the new ground been articulated before the Deputy President, it might have been possible to address it by seeking to locate evidence as to what had happened. That submission has much force, but the ground should be rejected for other reasons stated above.
[7]
Conclusions
Enough has been said to explain the orders made disposing of the appeal. The recusal application was properly determined by the Deputy President in dismissing the appeal before him.
BELLEW J: I have had the advantage of reading the reasons of Basten JA. I agree with those reasons which form the basis upon which I concurred with the orders which were made on 28 November 2017.
[8]
Endnotes
Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("Workplace Injury Act"), s 353.
Inghams Enterprises Pty Ltd v Belokoski [2017] NSWWCCPD 15 ("Inghams").
Appellant's summary of argument, 26 July 2017, par 7.
Inghams at [25].
Inghams at [26].
Inghams at [26].
Inghams at [41].
Inghams at [46].
Referring to a passage quoted earlier in the reasons from Duncan v Ipp [2013] NSWCA 189; (2013) 304 ALR 359.
Inghams at [47].
(2000) 201 CLR 488; [2000] HCA 48 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
(1983) 151 CLR 288 at 294 (Mason, Murphy, Brennan, Deane and Dawson JJ); [1983] HCA 17.
[1990] WAR 248 at 264 (Malcolm CJ, Brinsden and Seaman JJ).
See also Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (Mason J); [1986] HCA 39.
(2011) 244 CLR 427; [2011] HCA 48 at [63] (Gummow ACJ, Hayne, Crennan and Bell JJ).
(2000) 205 CLR 337; [2000] HCA 63 at [8].
(2012) 83 NSWLR 385; [2012] NSWCA 65 at [3]-[13].
Appellant's written submissions, par 12.
Appellant's written submissions, par 20.
Appellant's written submissions, pars 23 and 31.
Appellant's reply, par 3.
CUR24 at [14]-[22].
Inghams at [129].
Inghams at [130].
Inghams at [131].
Inghams at [133].
Inghams at [134].
Michael Wilson & Partners at [67] (emphasis in original).
(2010) 243 FLR 177 at 200 [91].
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Decision last updated: 07 December 2017