Metropolitan Fire & Emergency Services Board v Churchill [1998] VSC 51

7. The plaintiff, Metropolitan Fire and Emergency Services Board ("the Board"), is a body corporate pursuant to the provisions of the Metropolitan Fire Brigades Act 1958 ("the Act") and is the successor to the Metropolitan Fire Brigades Board. The old Board ("the old Board") was abolished on 1 September 1997 by the Fire Authorities (Amendment) Act 1997 and the plaintiff is its successor in law. - see s.96 of the Act.

10. The defendant, Senior Firefighter John William Churchill, is and was at all relevant times employed by the plaintiff and its predecessor, the old Board.

13. John Brian Parry, prior to 1 September 1997, was President and Chief Executive Officer of the old Board. On and after 1 September 1997 he was and is President and was Acting Chief Executive Officer and Acting Chief Officer of the new Board. He ceased being the Acting Chief Executive and Acting Chief Officer on 15 March 1998.

18. The basic facts leading to the dispute can be briefly summarised.

21. In January 1996, there was an industrial dispute concerning the United Firefighters Union of Australia ("the union"), and its members, who were employees of the old Board, and the old Board.

24. On 23 January 1996, it is alleged that the defendant, in the presence of members of the Metropolitan Fire Brigade directed abusive, derogatory and obscene language to, and attempted to intimidate, two officers of the brigade, namely, Inspectors Rampling and Darby. It is alleged that when he uttered the words he walked towards the two inspectors in an aggressive manner.

27. On 31 January 1996, five charges were laid against the defendant arising out of the said incident.

30. On 30 April 1996, the defendant and the union as applicants issued a motion in the Federal Court seeking an order that the old Board be restrained from dealing with the charges. Before the return of the motion the charges were withdrawn.

33. On 14 May 1996, the commander for the western zone of the Metropolitan Fire Brigade, Robert Taylor, re-laid the five charges against the defendant. The same facts are alleged to constitute each of the five charges.

36. The union and the defendant amended their earlier application and on 21 May 1996, Justice North, in the Federal Court, granted relief which had the effect of restraining the Board from proceeding with the charges at that time.

39. On 20 May 1997, the Fire Authorities (Amendment) Act 1997 ("Amending Act") was passed and Part 3 which concerned the Act, came into operation on 1 September 1997.

42. The Amending Act made substantial amendments to the Act.

45. The amendments contained provisions establishing a new Board and its powers, and provisions concerning the laying and hearing of disciplinary charges.

48. On 13 October 1997, the Federal Court application by the union the defendant and others against the new Board returned to the Court in Melbourne.

51. By this time the industrial dispute had been settled and finalised. During the day of 13 October 1997 discussions took place between representatives of the union, the defendant and their lawyers, and lawyers and representatives of the Board in an endeavour to settle the Federal Court proceedings. Two of the representatives of the Board present during the negotiations were its President, Mr Parry, and its then Chief Executive Fire Officer, Mr Godfredson. Negotiations were successful and terms of settlement were executed between the union, the defendant, two other employees and the Board. The other employees were on unrelated charges. The terms were signed by counsel for the parties and are dated 13 October 1997 but the likelihood is that they were signed on or after 14 October 1997. Nothing turns on the date.

54. The effect of the terms was that the defendant would plead guilty to the charges and the Board would impose agreed penalties. The penalties did not include dismissal from the brigade.

57. The application returned to the Court on 14 October, and later that day Justice Wilcox, by consent, dissolved the injunction in favour of the defendant against the old Board, and observed -

"I note that all three matters have been resolved by an agreement between the parties by consent. I strike out all three matters with liberty to restore any matter in which there may be a claimed failure to implement the agreement."

61. In order to implement the terms of settlement it was necessary to convene a hearing of the charges brought against the defendant and this was fixed for 11 November 1997.

64. The Chief Fire Officer, prior to 1 September 1997 and the Chief Executive Fire Officer under the new regime, Mr Godfredson and the President Mr Parry met on 11 November 1997 and a decision was made that Mr Parry had to hear the charges because the terms of settlement provided penalties that the President could only impose under the Act.

67. The matter did not proceed that day because Mr Churchill was absent on medical advice. On the adjourned date, the 17 November 1997, the hearing was further adjourned, the President, Mr Parry, noting that he had received notification from Mr Churchill's solicitors that the defendant would not honour the terms of settlement and proposed to make an application to the Federal Court for an interlocutory injunction.

70. An application was issued in the Federal Court by the defendant but was withdrawn on 20 November 1997.

73. On the resumption of the hearing on 25 November 1997 the defendant was represented by Mr Irving of Counsel who submitted to Mr Parry that he should disqualify himself from hearing the charges on the ground of perceived bias. Mr Parry, after a short adjournment and after taking legal advice, agreed to that course and said -

"I have considered what Mr Irving has had to say and in light of what he has had to say I disqualify myself from hearing these charges any further. I will by the appropriate instrument of delegation delegate somebody to hear the charges at a date and time to be fixed which will be notified to Mr Churchill appropriately."

77. It is noted that Mr Parry was of the belief that he could delegate his function to some other person to hear the charges.

80. Subsequently, he was informed that under the Act as amended he did not have power to delegate his function to hear the charges against Mr Churchill and accordingly it was necessary for him to hear them. The defendant's solicitors were informed of that fact by a letter dated 19 December 1997 and his solicitors informed the plaintiff's solicitors by letter dated 23 December 1997 that he continued to object to the President hearing the charges.

85. On 6 February 1998, the plaintiff instituted the proceeding against the defendant seeking a declaration as follows -

(a) the charges laid against the Defendant under section 78B(1) of the Metropolitan Fire Brigade Act 1958 on 14 May 1996:

(i) have been lawfully referred under section 78B(2) of the said Act to John Brian Parry,

(ii) may, or must, be heard by the said John Brian Parry pursuant to section 78B(3) of the said Act.

(b) if after hearing the charges the said John Brian Parry is satisfied that an offence has been committed, he may exercise the powers contained in s.78B(3) of the Act, as it was before 1 September 1997, in respect of the charges."

92. The defendant denies that Mr Parry can hear the matter and specifically asserts that there is perceived bias and accordingly he is disqualified from hearing the charges. Further, he asserts that the plaintiff is not entitled to obtain the relief sought.

95. In reply, the plaintiff has asserted that Mr Parry was not guilty of perceived bias, and asserts that Mr Parry is the only person who can hear the matter by reason of the provisions of the Act and in the alternative, by reason of the doctrine of necessity and therefore he must hear the charges.

100. In order to determine whether the plaintiff is entitled to the relief sought, it is necessary to consider and determine seven issues. They are -

(i) What legislation applies to the hearing of the charges?

(ii) Do the principles of natural justice apply to the hearing of the charges?

(iii) If yes to question 2, does the relevant legislation exclude or qualify the rules of natural justice?

(iv) If yes to question 2, and no to question 3 is the president of the Board, Mr Parry, disqualified from hearing the charges on the ground of perceived bias?

(v) If yes to question 4 does the doctrine of necessity apply and require Mr Parry to hear the charges?

(vi) If the old legislation applied is the defendant entitled to be heard when the Chief Fire Officer considers under s.78B(2) of the Act whether to hear the charges himself or refer them to the President?

(vii) Is the plaintiff entitled to the relief sought?

What legislation?

106. Charges were laid on 14 May 1996 pursuant to s.78B of the Act which also provided for the hearing of the charges. On 20 May 1997 the Fire Authorities (Amendment) Act 1997 was assented to and came into operation on 1 September 1997. It made substantial changes to the Act. It repealed s.78B and substituted a new s.78B and inserted ss.78C, 78D and 78E. These new sections provided for the laying and hearing of charges. An entirely new procedure was inserted for the hearing of the charges. Under the new procedure the Chief Executive Officer must hear the charges.

109. The parties agree that the old provisions apply to the hearing of the charges against the defendant by reason of s.14(2) of the Interpretation of Legislation Act 1984. I agree.

112. In the light of the issues before the court, the question of the President having the power to delegate his function to hear the charges under s.78(B)(3) of the old Act, became of critical importance to the outcome of the proceeding. If he could delegate then the plaintiff would not be entitled to the declaration. Some other person could hear the charges.

115. On the eve of the amending Act coming into operation, the Act provided that in certain circumstances the powers of the President could be delegated. See ss.9 and 10. These two provisions were repealed by the Amending Act and ceased to operate on 1 September 1997. They were not replaced.

118. Mr M. Irving, who appeared for the defendant, conceded that the repealed s.10 could not, in accordance with its terms, apply to the situation, where the President had stood down because he could not hear the charges on the ground of perceived bias. The section only applied in the absence of the President. There was also a further difficulty. Section 10 provided that in the absence of the President, the deputy president could assume certain powers. Since 1 September 1997 the office of deputy president ceased to exist and the transition provisions in the Amending Act made no provision for the Deputy President.

121. Mr Irving, however, submitted that s.9 of the Act prior to its repeal, continued to operate after the 1 September 1994 with respect to the hearing of the charges against the defendant.

124. Section 9 of the Act prior to its repeal relevantly provided as follows -

(1) Subject to the direction and control of the Board the president -

(a) may, unless otherwise directed by the Board, exercise all

or any of the powers of the Board; and

(aa) may, with the approval of the Board by instrument

delegate to any officer or employee or class of officers or

employees of the Board any of the powers of the

president under this Act or the regulations, other than

this power of delegation; and

(b) shall be responsible -

(i) for the direction and control of all officers and

members of brigades in the metropolitan

district and all other officers and employ,s of

the Board; and

(ii) for the implementation of all resolutions of the

Board."

131. Mr Irving referred to s.14(2) of the Interpretation of Legislation Act and in particular s.14(2)(b) and (g). It relevantly provided -

"14. Provision as to effect of repeal etc. of Acts

...

(2) Where an Act or a provision of an Act -

(a) is repealed or amended; or

(b) expires, lapses or otherwise ceases to

have effect -

the repeal, amendment, expiry, lapsing

or ceasing to have effect of that Act or

provision shall not, unless the contrary

intention expressly appears -

(c) ...

(d) ...

(e) affect any right, privilege, obligation or

liability acquired, accrued or incurred

under the Act or provision:

(f) ...

(g) affect any investigation, legal proceeding

or remedy in respect of any such right,

privilege, obligation, liability, penalty,

forfeiture or punishment as is mentioned

in paragraphs (e) and (f) -

and any such investigation, legal

proceeding or remedy may be instituted,

continued or enforced, and any such penalty,

forfeiture or punishment may be imposed, as if

that Act or provision had not been repealed or

amended or had not expired."

135. Mr Irving submitted that when the charges were laid the principles of natural justice applied to the hearing and the defendant was entitled to that right as at the eve of the amending Act coming into operation, that is, it was an accrued right. Further, he submitted that once the charges were laid and the hearing was pending this constituted a legal proceeding. It followed that his accrued right in the legal proceeding was unaffected by the repeal of the provisions. I agree.

138. The next step in his argument was that this accrued right to natural justice and the continuation of the legal proceeding, entitled him to an unbiased tribunal and if this could only be achieved by the President delegating his powers, s.9 survived its repeal by reason of s.14(2) of the Interpretation of Legislation Act.

141. Whilst I accept that on a proper interpretation of a statute, sections that continue despite repeal may also require the operation of other sections to ensure that they can operate effectively, that is not the position here. The continuance and operation of ss.78(B) does not require for its effective operation the continuation of s.9 of the old Act. In my opinion s.9 did not survive its repeal in the present circumstances.

144. There are other reasons why s.9 could not operate in the present circumstances.

147. First, the power of delegation is subject to the approval of the Board. The old Board ceased to exist on 1 September 1997. The transition section, s.96 of the Amending Act does not apply. It follows that there is nobody capable of giving approval to the delegation.

150. Secondly, there are no officers or employees of the old Board after 1 September 1997. It follows that there is no person to whom the delegation could be made.

153. Thirdly, s.9(1)(a) and (b) only permit the delegation of "the powers of the president". The Act drew a distinction between powers, authorities, duties and liabilities - see ss.10, 24A, 24B, 25, 25A, 31(3) and 31A. In my opinion, when presiding at a tribunal hearing, the President is not exercising a power but is performing a function pursuant to the authority given to him by the statute. As a general proposition and of course subject to the proper interpretation of the legislation, there is a difference between a power and exercising a function. See generally the remarks of Lockart, J. in Mercantile Mutual Life Insurance Co Ltd v. Australian Securities Commission (1992) 40 F.C.R. 409 at 422.

156. Finally, s.78B entrusts the hearing of the more serious charges to the holder of an office, namely, that of President. In my opinion, it was the intention of Parliament that the person holding that office and that person alone must hear the serious charges or in his absence, by reason of s.10, the Deputy President.

159. For all those reasons, in my opinion, s.9 did not survive the repeal, and had no operation after 1 September 1997 in respect of the hearing of charges against the defendant.

164. The charges against the defendant must be heard pursuant to s.78B of the Act prior to its amendment. It provided -

"78B. Laying and hearing of charges

(1) Any officer of or above the rank of district officer, but

not the Chief Fire Officer, may after investigation lay

a charge for an offence under section 78A.

(2) A charge for an offence under section 78A shall be

heard by the Chief Fire Officer who may -

(a) refer the charge to the president of the Board and

may suspend from duty any person so charged

until the charge is dealt with under sub-section

(3) of this section; or

(b) hear the charge and if satisfied the offence was

committed may -

(i) reprimand the officer or member

concerned;

or

(ii) impose a fine of not more than 2 penalty

units.

(3) Where a charge is referred under paragraph (a) of

sub-section (2), the president shall hear the charge and

if after hearing the charge he is satisfied the offence

was committed shall -

(a) dismiss such officer or member from the brigade;

or

(b) reduce such officer or member in rank for such

period as he thinks fit; or

(c) reprimand such officer or member; or

(d) impose a fine of not more than 5 penalty units

upon such officer or member.

(4) Upon the hearing of any charge by the president

against officers or members of the Brigade such

officers or members shall be entitled to be represented

by a duly qualified legal practitioner or other person

who may examine witnesses and address the president

in their behalf.

(5) An officer or member who has been suspended from

duty may engage in remunerative employment during

the term of his suspension.

(6) All pay which accrues to an officer or member during

any period of suspension shall be withheld.

(7) Where an officer or member is acquitted of the charge in

respect of which he has been suspended all pay

withheld in accordance with sub-section (6) less the

amount of any earnings received by him during the

period of his suspension shall forthwith be paid to him.

(8) Where an officer or member is not acquitted of the

offence in respect of which he has been suspended all

pay withheld in accordance with sub-section (6) shall

be forfeited unless the president of the Board orders

otherwise.

(9) Where a fine is imposed under this section the amount

of such fine may be deducted from the pay of the

officer or member fined but not more than 1/2 of a

penalty unit shall be deducted from the pay

attributable to any one week."

168. The section makes no mention of an obligation to accord natural justice at the hearing of any charge.

171. The evidence reveals that on the morning of 11 November 1997 the former Chief Fire Officer who was at that date the Chief Executive Fire Officer under the Amended Act, Mr Jeffrey Godfredson, and the President, Mr Parry, who was also acting Chief Executive Officer and acting chief Officer, met and it was agreed that the President should hear the charges. It is noted that there was a two-tier system for hearing charges. Because the terms of settlement provided certain penalties, the only person who could hear the charges against the defendant, was the President.

174. It is apparent from the section that if the charges are referred to the President they would be the more serious charges and the President had the power to inflict heavier penalties, including dismissing the officer from the Brigade.

177. It is noted that the section provided for representation for the accused by a legal practitioner where the hearing was before the President and the legal practitioner was entitled to examine witnesses and make submissions on behalf of the accused officer.

180. Whether or not a tribunal hearing charges against a person is bound to accord natural justice depends upon a number of factors including the provisions of the statutory instrument concerning the tribunal and whether a decision made could affect the rights of the individual.

183. Gibbs, J. summarised the circumstances in which the principles may apply in Salemi v. MacKellar (No. 2) [1977] HCA 26; (1977) 137 C.L.R. 396 at 419 when he said -

"There is nothing technical about the principles of natural justice. It is sometimes said, or suggested, that those principles apply only to proceedings which are judicial or quasi-judicial or where there is a duty to act judicially. To state the rule in that way seems to me to be unduly restrictive and misleading. It is at least clear that when the power which is being exercised is a statutory one, it is not necessary to be able to find in the words of the statute itself a duty to hear the party affected or otherwise to act judicially. To repeat the well-known words of Byles, J. in Cooper v. Wandsworth Board of Works, `Although there are no positive words in a statute requiring that the parties shall be heard, yet the justice of the common law will supply the omission of the legislature.' As Lord Reid said in Ridge v. Baldwin, it may be possible `to infer a judicial element from the nature of the power' in the case. Further, the application of the principle is not limited to cases where the power that is exercised affects rights in the strict sense: see e.g. Banks v. Transport Regulation Board. It may be enough if an interest or privilege is affected, or, as Lord Denning, M.R. has said, if a man has a `legitimate expectation' of which it would not be fair to deprive him without a hearing or reasons given. But it would be wrong to attempt to give an exhaustive classification to cases where the principle should be applied.

The question of whether the principles of natural justice must be applied, and if so what those principles require, depends on the circumstances of each case. In the case of a statutory power, the question will depend on the true construction of the statutory provision in light of the common law principles."

187. Lord Reid in Ridge v. Baldwin [1963] UKHL 2; [1964] A.C. 40 after discussing persons who hold office at pleasure then considered the employed person and said at p.66:

"So I come to the third class, which includes the present case (dismissal of Chief Constable). There I find an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation."

191. I have no doubt that the principles of natural justice would apply to the hearing of any charges by the President against an officer of the Brigade pursuant to s.78B of the Act.

194. Indeed, Mr Uren, Q.C. who appeared with Mr P. Solomon for the plaintiff, did not suggest otherwise.

197. The actual application and content of the doctrine of natural justice depends to a large extent upon the relevant statutory provisions. What is appropriate depends upon the particular statutory framework and this may have the effect of qualifying or excluding the rules of natural justice. But other factors play their part.

"The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth."

201. Per Tucker, L.J. in Russell v. Duke of Norfolk (1949) 1 All E.R. 109 at 118 quoted with approval by the Privy Council in University of Ceylon v. Fernando (1960) 1 W.L.R. 223 and the High Court in the Angliss Group case (1969) 122 C.L.R. 546 at p.582.

204. The principles of natural justice involve two basic general rules, namely:

(i) the audi alteram partem rule - the right to know the allegations put and an opportunity to be heard;

(ii) the rule against bias - the body making the decision should be free from bias, actual or perceived.

210. The ultimate question is whether the decision making process ensures procedural fairness. As has often been put, the tribunal hearing is and must be - "Fair play in action". See Ridge v. Baldwin [1963] UKHL 2; (1963) 1 Q.B. 539 at p.578 - per Harman, L.J.

213. Mr Irving disavowed any suggestion that Mr Parry was guilty of actual bias. The submission he put to Mr Parry at the hearing and which he repeated before me, was that the reasonable bystander would perceive that Mr Parry was biased by reason of his participation in the events of 13 October 1997 in the Federal Court and is accordingly disqualified on the ground of perceived bias.

216. Requirements of natural justice with respect to the question of perceived bias have been stated on many occasions. I refer to what the High Court said in the Angliss Group case (supra) p.553 -

"Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the Tribunal or in the minds of the public that the Tribunal or member or members of it, may not bring to the resolution of the questions arising before the Tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one of which having thought about it has not formed any views or inclination of mind upon or with respect to it."

220. It is noted that the formulation states "a reasonable suspicion of bias" but more recently the High Court has adopted the phrase "reasonable apprehension of bias."

223. It is noted that the formulation states 'a reasonable suspicion of bias" but more recently the High Court has adopted the phrase "reasonable apprehension of bias."

226. The Court of Appeal in this State considered the question of apprehended bias in Rozenes v. Kelly [1996] VicRp 20; [1996] 1 V.R. 320 and came to the view that the test in Australia was whether -

"In all the circumstances, a fair minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the Judge might not bring an impartial and unprejudiced mind for the resolution of the matters before him: Webb v. R. [1994] HCA 30; (1994) 181 C.L.R. 41 at 67, per Deane, J. and the authorities there cited."

230. I refer also to what Dawson, J. said in Grassby v. R. [1989] HCA 45; (1989) 168 C.L.R. 1 at p.20.

233. The question is, would the defendant or the reasonable bystander entertain a reasonable apprehension that the President might not bring an impartial and unprejudiced mind to a hearing of the charges?

236. In considering this question it is important to bear in mind the often repeated saying of Lord Hewart, C.J. in Rex v. Sussex Justices, ex parte McCarthy [1924] 1 K.B. 256 at 259:

"It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

240. In approaching its task the Court does not look into the mind of the President. To quote Lord Denning, M.R. in Metropolitan Properties Co. (S.G.C.) Ltd. v. Lannon [1968] EWCA Civ 5; [1969] 1 Q.B. 577 at 599:

"There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour the one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour the one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right minded people go away thinking: 'The Judge was biased'." (my emphasis)

244. I am satisfied that on the hearing of the charges Mr Parry is obliged to accord natural justice, one of the obligations of which is, that he should be perceived to be an impartial adjudicator of the charges brought against the defendant.

249. As already stated, on 25 November 1997, after hearing submissions from Mr Irving on behalf of the defendant, Mr Parry agreed to stand down on the ground of perceived bias.

252. It is accepted that some weight must be given to the decision but in the end, it is for this court to decide whether there is perceived bias - see Re Polites: ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 C.L.R. 78 at 89.

255. In applying the test for perceived bias, it is necessary to determine what the parties or the reasonable observer would know concerning the issue. What would the parties or the reasonable observer know?

258. The question has been taken up in a number of cases.

261. In Stollery v. Greyhound Racing Control Board [1972] HCA 53; (1972) 128 C.L.R. 509 at 517 Barwick, C.J. said -

"The most important feature of the matter is the appearance which his continued presence in the board room during the time the matter was decided and the penalty agreed must present to any reasonably minded man who knew the facts antecedent to the hearing before the board but who was completely unaware of what had occurred in the board room." (my emphasis)

265. In Laws v. Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 C.L.R. 70 at p.87 Mason, C.J. and Brennan, J. said -

"In assessing what the hypothetical reaction of a fair minded observer would be, we must attribute to him or her knowledge of the actual circumstances of the case. In other words the observer would take account of the circumstances which led to the bringing of the defamation action and the filing of the defences."

269. Their Honours added that it would not be proper to attribute to the observer the understanding of a lawyer.

272. Whether or not the parties or the reasonable observer might entertain a reasonable apprehension of bias will depend upon all the circumstances. It follows that the determination of the appearance of bias depends upon a full knowledge and understanding of the material facts as seen through the eyes of the parties or the reasonable lay observer. In the end the test is an objective one.

275. Sheppard, J. speaking for the Federal Full Court in Minister for Immigration v. Mok (1994) 55 F.C.R. 375 said at p.399 -

"The test is an objective one. The question is whether there has been conduct or some event which may tend to undermine public confidence in the judicial process or, in this case, the administrative process. Statements in the authorities which refer to the point of view of one of the parties or to the point of view of a person adversely affected by a decision do not add anything to the general statements concerning the need for an informed fair-minded observer to have a reasonable apprehension that the conduct or event might have prejudiced the decision-making process."

279. As the text is an objective one, the court does not look into the mind of the person alleged to be biased. The court looks at all the material facts to determine the question. Devlin, J. in Reg v. Barnsley Licensing Justices (1960) 2 Q.B. 167 at p.187 summarised the approach as follows -

"Do they give rise to a real likelihood that the justices might be biased? The court might come to the conclusion that there was such a likelihood, without impugning the affidavit of a justice that he was not in fact biased. Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so. The matter must be determined upon the probabilities to be inferred from the circumstances in which the justices sit." [My emphasis]

283. The question that a court has to decide with respect to perceived bias, does not depend upon what Mr Parry knew, thought or expected but depends upon what the reasonable observer, knowing all relevant facts, would infer appears to be the situation. See R. v. Sussex Justices; ex parte McCarthy (1924) 1 K.B. 256 at 259.

286. Brennan, J. described the approach in Builders' Registration Board of Queensland v. Rauber (1983) 57 A.L.J.R. 376 at 384 as follows -

"Each of the indicia which a party proves and relies upon to show a reasonable suspicion of bias must be examined, and the court is called on to determine whether upon such indicia a reasonable suspicion of bias arises."

290. His Honour when considering whether certain facts gave grounds for reasonable suspicion of bias said -

"The answer is inevitably a matter of impression, a matter of fact and degree."

294. In being guided by the dicta of Brennan, J., I have not overlooked the fact that the test is now "reasonable apprehension of bias".

297. The issue of perceived bias raised factual questions which were the subject of evidence before me. The evidence concerned the events of 13 October 1997 when the parties attended at the Federal Court in Melbourne and spent the day discussing the outcome of the proceeding, and negotiated a settlement. Mr Parry was present during the day and the issues of fact before me were the participation by Mr Parry in the negotiations, his presence with the person who laid the charges and the witnesses of the language used by the defendant, his knowledge of the circumstances of the charges involving the defendant and his participation in the decision to settle the dispute between the parties.

300. The terms of settlement which were signed by counsel for the plaintiff and the defendant and dated 13 October 1997 provided relevantly with respect to the defendant as follows -

"1. Any Orders of the Court or undertakings to the Court regarding the Respondent (i.e. the Board) not proceeding or dealing with any charges brought or adverse reports being the subject of these three proceedings are by agreement set aside.

3. The Respondent agrees that the penalties to be imposed on Churchill in respect of the charges admitted by him are as follows:

(a) From the date of the return of Churchill from annual leave (or some other date soon thereafter agreed between the MFESB and Churchill) for a period of 12 months, Churchill shall be reduced to the rank of Level 1 Firefighter.

(b) During that 12 month period Churchill shall be subject to the probationary terms (excluding completion of modules, written assessments and any other assessment regarding fire fighter competence) applicable to other fire fighters at that level.

(c) At the completion of that 12 month period Churchill shall be placed in the rank of Qualified Firefighter for a period of 12 months.

(d) At the completion of that 12 month period, Churchill shall be placed back in his current rank being Senior Firefighter with Leading Firefighter qualifications and subsequently be eligible to apply for further promotion.

(e) Churchill shall within 7 days of the signing of these Terms provide a written apology to Inspectors Rampling and Darby in the following terms:

'I apologise to Inspectors Rampling and Darby for my abusive language and conduct on 23rd January 1996 at Footscray Fire Station. That conduct was inappropriate and I regret it.

I undertake not to use abusive language towards superior officers in the future nor attempt to intimidate such officers in the performance of their duties.'

9. The applications made by the various Applicants are struck out.

10. These Terms are in full and final settlement of all matters being the subject of the charges and the laying of the charges and conduct related and there shall be no further proceedings in respect thereof."

317. The terms were signed by counsel representing both parties.

320. Mr Irving submitted that there were two categories of facts which would lead to reasonable apprehension of bias in Mr Parry. First, his contact with the person who laid the charge, Commander Taylor, and the two persons who were allegedly abused, Inspectors Rampling and Darby, during the course of the day of 13 October 1997 and that this contact was unnecessary and improper in the circumstances. In other words, the adjudicator was in contact with the prosecutor and the witnesses and discussing some features of the case.

323. The second category was, that there had been a pre-judgment of one of the issues namely the issue concerning penalty. The point Mr Irving makes is that Mr Parry was involved in considering and determining the appropriate penalty which the Board would be prepared to accept, to settle the matter. It followed that he had made some assessment of the issue and made a judgment. Mr Irving submitted that Mr Parry was confronted with the situation that when he came to fix penalty, assuming he found Mr Churchill guilty of the alleged charges, he was faced with having already made a determination as to the proper penalty

326. Mr Irving did not suggest that Mr Parry's knowledge of the terms of settlement which contain an admission of guilt was a matter to take into account on the question of perceived bias. The admission of guilt would no doubt be a fact which would be established at the hearing of the charges. There is no suggestion that Mr Parry and the defendant were in each other's company during 13 October 1997 or that Mr Parry was privy to any of the circumstances which led to the defendant admitting his guilt. It is open to the defendant at the hearing to adduce evidence to qualify, minimise or destroy the admission. It follows that the reasonable observer, knowing those facts, would not conclude that there was a reasonable apprehension of bias on the ground that Mr Parry knew an admission of guilt had been made. It would be a relevant fact at a hearing of the charges irrespective of who presided at the hearing.

329. The plaintiff, through its counsel, sought to establish on the evidence that Mr Parry knew little of the circumstances of the actual charges, did not discuss them in any detail with Commander Taylor or Inspectors Darby or Rampling, and that in the circumstances he would have no difficulty in hearing the charges and if found proven impose a suitable penalty. Whilst I accept his evidence on these matters, they are hardly to the point. The question is, how did the reasonable observer, knowing the facts, view what had occurred? It is the appearance of justice which is of importance.

335. The hearing of the Federal Court application was fixed for 13 October 1997. The union decided prior to that date for good reason to explore the possibility of settling the proceeding and made an approach to representatives of the Board.

338. Mr Parry was alerted to the prospect of settlement and was requested to attend the court on 13 October 1997. At that time, Mr Parry was President of the Board and also Acting Chief Officer and Acting Chief Executive Officer. His presence at any negotiations on 13 October would facilitate the negotiations to a point where he could indicate what the likely response of the Board would be to any settlement. There is no evidence that he was authorised on behalf of the Board to make any agreement but the practical reality was that anything he argued would no doubt carry considerable weight with the Board. On the other hand, I accept the submission of Mr Irving that his presence on that day was not essential or necessary to effect a settlement. Nevertheless, as the senior member of the Board any agreement in principle would have come to his notice at some stage prior to discussion by the Board.

341. Mr Parry met at the chambers of counsel for the plaintiff, Mr Frank Parry, at about 11.00 a.m. on that morning. There were a number of people present. Ms Dalton, a solicitor with Freehill Hollingdale and Page was handling the matter on behalf of the Board and I accept her evidence that in addition to Mr Parry, Mr Geoff Godfredson, the Chief Executive Officer, Mr Keith Adamson, Mr Chris Boon, the Chief Industrial Officer in the Board's employ Inspectors Darby and Rampling and Commander Taylor were present. I accept that they met at counsel's chambers to group and walked across to the court at about 11.30 a.m. The three proceedings in the Federal Court were called on at 11.45 a.m. and Justice Wilcox stood the matter down to allow the parties to negotiate.

344. The employees of the Board, Mr Frank Parry and Ms Dalton, gathered in a conference room in the Federal Court and remained there for approximately two hours. It is noted that Commander Taylor was the person who laid the charges against the defendant, and Inspectors Darby and Rampling were the persons whom the defendant allegedly abused and approached in an aggressive manner.

347. At about 1.45 p.m. or thereabouts, Mr Frank Parry, told the representatives of the Board that he had been told by counsel for the four applicants that they wanted to settle the proceedings by negotiating appropriate penalties in respect of each charge.

350. Mr Frank Parry discussed the pros and cons of proceeding with the matter in the Federal Court and during the course of the discussions the inspectors indicated they were strongly opposed to any settlement of the proceeding.

353. Between approximately 2.15 p.m. and 4.15 p.m. a number of discussions took place between the parties relating to settlement of each of the three proceedings.

356. Present negotiating on behalf of the union and the three applicants was a barrister, also a solicitor from Maurice Blackburn & Co, and a Mr Peter Marshall who was the secretary of the union. Mr Churchill was present but did not participate in the discussions between the parties.

359. During negotiations, representatives from each side talked to different representatives of the other side. Sometimes the discussions would only be between counsel, at other times counsel with instructing solicitors and at other times Mr Marshall and Messrs Brian Parry and Godfredson had discussions. Discussions centred around the three fire fighters and Mr Marshall put to Mr Godfredson and Mr Parry that the alleged conduct of the defendant was part of an industrial dispute which was now over and the parties should forget it. I accept that Messrs Brian Parry and Godfredson rejected that view.

362. Discussions took place concerning the defendant after the representatives of the Board had expressed the view that it would not withdraw the charges and the question turned to penalty if Mr Churchill pleaded guilty. Mr Brian Parry was involved in those discussions. I accept that Mr Godfredson did most of the talking, but nevertheless, Mr Parry stood by and participated in the discussions. I also accept the evidence that in discussions involving Messrs Marshall, Brian Parry and Godfredson that the view was expressed by the representatives of the Board that they considered the allegations made against the defendant were serious. I also accept that there was some discussion concerning the question of whether the defendant assaulted the two inspectors, although it is unnecessary for me to make any finding as to what was said by either side. I am also satisfied that Mr Marshall did raise the question with Messrs Brian Parry and Godfredson that the Board might sack the defendant and they indicated that the penalty would need to be severe because of the seriousness of the incident.

365. Mr Brian Parry was of the view that the matters were serious and expressed that view during the course of negotiations to representatives of the other side. He explained to the court the reasons as follows -

"Well, your Honour, I had heard three other charges in relationship (sic) to conduct arising out of actions during the dispute and those charges had, when proven, led to penalties. But those three fire fighters who were involved had no prior disciplinary charges against them. It was quite clear from Mr Churchill's previous experience in 1993 I think it was, that any charge in the event of it being sustained would necessarily result in a very severe response. So they were very serious charges because of the way in which they had arisen."

369. When asked whether he may have conveyed those thoughts to Mr Marshall he said - "I would certainly have said that anything, any charge against Mr Churchill, because of the previous record, was potentially extremely serious if he was found guilty and that would have been not just my view but it would have been common knowledge within the organisation."

372. Mr Frank Parry of counsel sought instructions from Messrs Brian Parry and Godfredson as to what penalty the Board would accept in relation to each of the three fire fighters.

375. By approximately 4.15 p.m. agreement was reached in principle involving the proceedings brought by Messrs Lyon and Churchill but there were some issues still outstanding in relation to the proceeding against the third fire fighter. The court proceeding was adjourned to the following day and at about 4.20 p.m. Ms Dalton, together with Messrs Brian Parry, Godfredson, Adamson and one or both of the inspectors, returned to the chambers of Mr Frank Parry of counsel in order to draft the terms of settlement. Mr Brian Parry left at about 4.30 p.m. and the drafting continued up until about 6.00 p.m.

378. The terms were drafted but not signed and the following morning the MacMullen application commenced before Justice Wilcox but was ultimately settled. The terms of settlement were dated 13 October 1997 but the probabilities are that they were signed on 14 October or shortly thereafter.

381. The hearing of the charges against the defendant in accordance with the terms of settlement was fixed for 6.00 p.m. on 11 November 1997. Prior to the hearing, Messrs Parry and Godfredson discussed the terms and the procedure and it was accepted between them that because of the penalty involved, Mr Parry had to hear the charges.

384. Shortly before 6.00 p.m., Mr Parry was informed that the defendant was absent from work on medical grounds and could not attend the hearing. The hearing was adjourned to 17 November 1997 at 8.00 a.m. Between 11 and 17 November, Mr Parry was informed that the defendant might not comply with the terms of settlement. Later that day, Mr Parry was informed that the defendant's solicitors had rung the Board's solicitors and stated that the defendant was not prepared to abide by the terms of settlement and wished to proceed in the Federal Court. As a result, Mr Parry adjourned the hearing on 17 November to 25 November 1997. In the meantime, the defendant filed a notice of motion in the Federal Court but withdrew it.

387. On 25 November 1997, Mr Irving of counsel appeared for the defendant and after the defendant pleaded not guilty to all charges, Mr Irving submitted that Mr Parry should disqualify himself on the ground of perceived bias. After submissions during a short adjournment Mr Parry received advice, and agreed to stand down and not hear the proceeding on the ground of perceived bias. In reaching that decision he was of the opinion that he could delegate his authority to hear the matter to some other person.

390. Subsequently, he ascertained that there was no power to delegate and the solicitors for the defendant were informed by letter dated 19 December 1997 and told that Mr Parry would hear the charges.

393. In determining whether there was perceived bias, it is necessary to consider what the fair minded observer would understand as a result of observing what occurred on 13 October 1997.

396. He would have made the following observations and drawn the conclusions -

(i) that Mr Parry was in the company of the person who laid the charges and the two persons who were abused, namely, Inspectors Darby and Rampling, for a period in excess of five hours;

(ii) that it would be a fair inference to draw that discussions took place in his presence concerning the nature of the charges, their severity and the attitude of the inspectors and Commander Taylor as to withdrawing the charges;

(iii) that Mr Parry, as President of the Board and the most senior person present would be the one who would assume to speak for the Board and who would give the consent in principle of the Board to any proposed settlement;

(iv) that Mr Parry took part in the negotiations;

(v) that Mr Parry expressed views in the course of the negotiations as to the seriousness of the charges and the fact that they should be treated seriously;

(vi) that Mr Parry was involved in the decision that the charges would not be withdrawn and had to proceed;

(vii) that Mr Parry knew of the circumstances of the charge, that he was aware of the views of others with respect to the question of penalty and made a decision as to the appropriate penalty.

402. The latter conclusion must follow because in order to determine the appropriate penalty he would have to have some knowledge of the circumstances of the facts. Whilst I accept the evidence of Mr Parry that he did not know in detail the circumstances of the charges, in my opinion it would be a reasonable inference for the fair minded observer to make that he must have had some idea of the nature of the charges in order to determine what was a suitable penalty.

405. In my opinion, a fair minded lay observer with knowledge of those facts and drawing the said inferences might entertain a reasonable apprehension that Mr Parry might not be able to bring an impartial and unprejudiced mind to the resolution of the charges before him. Mr Parry, had in discussions with representatives of the Board, made a decision as to what was an appropriate penalty on 13 October 1997. The fair minded observe would infer that he made that decision after considering all the facts and having discussions with those involved in the charges.

408. In my opinion, it is his actual participation in determining the penalty for the purposes of the compromise which disqualifies him. That is the very matter that he has to now decide afresh.

411. In this regard I refer to what Isaacs, J. said in Dickason v. Edwards [1910] HCA 7; (1910) 10 C.L.R. 243 at p.260 -

"So that the principle seems to me to be this - that, if the person whose presence is challenged can fairly be said to be biased, either by reason of his necessary interest or by reason of some predetermination he has arrived at in the course of the case, that he ought not to act unless there is something to relieve him from these disqualifications."

415. I am not finding actual bias but the clear inference from all the circumstances leads to perceived bias. In making that finding I also take into account Mr Parry's views expressed by him when objection was made to him hearing the charges.

418. Mr Uren, Q.C. submitted that the involvement of Mr Parry in the settlement was of less significance than what would be involved in plea bargaining by a judge. He submitted that plea bargaining has never raised an issue of perceived bias even if undesirable for other reasons.

421. I do not accept the submission. The mere fact that no accused has raised the question of perceived bias with respect to plea bargaining before does not mean that in certain circumstances there may not be perceived bias. Further, the circumstances are different. Plea bargaining involves a member of the judiciary, whereas Mr Parry is not a legally trained person and was seen to be closely associated with one party in the negotiations. A judge would not be seen as being associated with one party in a plea bargaining exercise.

426. Mr Uren, Q.C. submitted that the provisions of s.78B(3) of the Act prior to amendment required Mr Parry as president to hear the charges and did not empower any other person to hear the charges. He submits there is no power of delegation and it must therefore follow that under the sub-section Mr Parry must hear the proceeding.

429. This submission is different to the doctrine of necessity. The submission depends upon the terms of the statute which establishes the Tribunal.

432. Mr Uren, Q.C. submits that the language of s.78B(3) of the Act is mandatory and it follows that the principles of natural justice with respect to the question of perceived bias have been excluded.

435. It is well established that the statutory framework which establishes the tribunal and regulates its powers and procedures may qualify, or exclude the rules of natural justice requiring adjudication before an impartial and disinterested tribunal.

438. In National Companies and Securities Commission v. News Corporation [1984] HCA 29; (1984) 156 C.L.R. 296 at p.319-20, Mason, Wilson and Dawson, JJ. said -

"However although in the Act now under consideration the legislature has plainly resolved that question (that the rules of natural justice applied) it remains to consider what the rules of natural justice require in the particular circumstances of the case. In R. v. Commonwealth Conciliation and Arbitration Commission ex parte Angliss Group the High Court said in a joint judgment:

`It must be borne in mind that these principles are not to be found in a fixed body of rules applicable inflexibly at all times and in all circumstances.'

Tucker, L.J. said in Russell v. Duke of Norfolk:

`The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth.'

This passage was approved by the Privy Council in The University of Ceylon v. Fernando and was used by Kitto, J. in Mobil Oil Australia Pty Ltd v. Federal Commission of Taxation. There his Honour observed:

`What the law requires in the discharge of a quasi judicial function is judicial fairness. What is fairness in a given situation depends upon the circumstances.'

We agree with the foregoing statements of the relevant law. The statement of Tucker, L.J. has been adopted in many subsequent cases."

442. Accordingly, in order to determine the content of the rules it is necessary to consider the whole of the circumstances and in particular any statutory or other rules which govern the existence of the Tribunal and the exercise of its powers. In the Angliss Group case (1969) 122 C.L.R. 546 at p.553 the court said -

"It is plain that when it is necessary to consider a question of fairness in relation to a tribunal, the whole of the circumstances in the field of inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise, are amongst those circumstances." [My emphasis]

446. It follows that the statutory framework may impinge on the requirements of natural justice and may have the effect of modifying them or indeed raising a potential for a conflict of interest leading to a perceived bias finding. If this is so, then so be it.

449. By way of example I refer to R. v. Brewer, ex parte Renzella [1973] VicRp 36; (1973) V.R. 375 where stewards under the Rules of Racing were investigators and accusers, conducted the enquiry and imposed a penalty. Adam, J. held that the stewards were subject to so much of the principles of natural justice as had not been modified or abrogated by the racing rules.

452. The question is whether the Act excluded the rules of natural justice with respect to perceived bias when the president exercised his function under s.78B(3) of the Act?

455. As stated, the principles may be excluded by statute expressly or by implication.

458. Dixon, C.J. and Webb, J. said in Commissioner of Police v. Tanos [1958] HCA 6; (1958) 98 C.L.R. 383 at 396 the following -

"The rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment."

462. An example of where the rule against bias was excluded by legislation is the Privy Council decision of Jeffs v. New Zealand Dairy Production and Marketing Board (1967) 1 A.C. 551.

465. In that case, the Marketing Board, which was established by an Act of Parliament, had as one of its powers to define areas in which particular factories could obtain milk. The Board was owed a sum of money by a company and a committee investigating questions of supply held a public enquiry and recommended a zoning conditional upon compensation being paid to the company for the loss of supply it would suffer. The Board accepted the committee's recommendations. A number of farmers sought a writ of certiorari to quash the zoning orders and all proceedings connected with the committee's hearing.

468. The attack upon the Board's decision was that it had a pecuniary interest in the result.

"In their Lordships' opinion the conclusion is inescapable that it was intended that the board should design zoning questions even though its pecuniary interests might be affected. Decisions on zoning are of great importance both to farmers supplying dairy products and to the dairy companies dependent on the areas of supply allotted to them.

The Act of 1961 did not provide for the determination of such questions by anybody other than the board. They were to be decided by the board. By the same Act parliament authorised the making of loans by the board to dairy farmers and had transferred to the board the right to repayment of loans made by the commission."

475. It is clear from the statutory framework considered by the Privy Council in that case that the disqualifying features came about because of the Board exercising statutory power and rights.

481. Mr Parry was not exercising any statutory power, authority or obligation when he attended court and participated in the discussions on 13 October 1997. What disqualified him did not come about because of any exercise of a statutory power or function by him but came about because of his own conduct on the day in question.

484. In my opinion, the Act does not exclude the requirement that the president, when hearing the charge pursuant to s.78B(3) of the Act, is obliged to be impartial and disinterested and not perceived to be biased in any way.

487. Mr Uren, Q.C. made a passing reference to the right of appeal from the president to another tribunal but did not submit that that right impliedly excluded the rule against perceived bias. Although the charges would be heard under the provision of the unamended Act, any appeal would have to be under the provisions of the amended Act. The appeal provisions are found in s.79. Section 79 established the Metropolitan Fire and Emergency Services Appeals Commission. Its function is to hear an determine any appeal made and its membership was to comprise of up to three commissioners appointed by the Governor-in-Council. No evidence was placed before me as to whether the appeal commissioners had been appointed and whether they had any legal background.

490. I am not prepared to find that because there is a right of appeal this excludes the rule of disqualification for perceived bias.

493. In my opinion, the Act and in particular s.78B(3) did not exclude the rule against perceived bias. The Act required that the president hear the charge and the common law rules relating to natural justice demanded that he be perceived to be impartial and disinterested.

498. Mr Uren, Q.C. submitted that if a finding of perceived bias is made the doctrine of necessity applies and as Mr Parry is the only person who can hear the charges, he must do so. He submitted that necessity demanded such a course.

501. The doctrine of necessity is an exception to the rule against bias. The law is that the doctrine may apply where the person disqualified is the only one authorised to decide the particular matter in question and necessity demands that he should decide the matter..

504. The doctrine is the product of the common law and can trace its origin back to 1429. Despite its antiquity the doctrine has not been applied often and its scope and extent has not been fully analysed by any final Court of Appeal. The High Court has recently considered the doctrine in two cases but the discussions are plainly obiter dicta.

507. However, it is possible to state a number of propositions which are beyond controversy.

510. First, the doctrine can apply where the person or entity is disqualified for actual, pecuniary or perceived bias. See The Judges v. A.-G. for Saskatchewan (1937) 53 T.L.R. 464 and Laws v. Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 C.L.R. 70 per Deane, J. at p.96.

513. Secondly, it can apply not only to court proceedings but also to any proceeding where the person or entity is bound to act judicially, for example a disciplinary tribunal. See Builders' Registration Board of Queensland v. Rauber (1983) 57 A.L.J.R. 376 at pp.385-6 per Brennan, J. and Laws v. Australian Broadcasting Tribunal, supra at pp.88-89, per Mason, C.J. and Brennan, J.

516. Thirdly, it does not apply where it is not necessary that the disqualified person or entity should make the decision. Hence if it is possible and practicable to appoint another person or entity to make the decision then the doctrine does not apply. However, this is not an inflexible rule and there may be circumstances where the doctrine should apply because not to do so, would result in enormous cost or substantial delay. See observations of Lord Brougham in Thellusson v. Rendlesham [1859] EngR 741; (1859) 7 H.L.Cas. 429 at 430-31; [1859] EngR 741; 11 E.R. 172 at 173.

519. Fourthly, the application of the doctrine is to be considered after a finding of bias is made.

522. That the doctrine is part of the common law is well established and beyond doubt. As early as 1429 it was held that there could be no objection to the Common Pleas court hearing an action which was brought against all the judges of that court in a case involving a debt which could only be brought in that court. See Year Book 8 Hen 6, 19 referred to in Dimes v. Grand Junction Canal (1852) 3 H.L. Cas. 758 at 787; [1852] EngR 789; 10 E.R. 301 at 313.

525. In the case of The Parishes of Great Charte v. Kennington (1742) 2 Strange 1173, 93 E.R. 1107, the Court of Kings Bench was concerned with a case where two justices of the peace made an order removing a pauper from the parish where one of the justices paid the poor rate. The order was quashed. The Kings Bench held that the removal was a judicial act and the justice of the peace was interested. But the court went on to say with respect to corporations the following:

"And as to the case of corporations, they said, that if it appeared there were no other justices, it might be allowed to prevent a failure of justice." [My emphasis]

529. It is pertinent to observe first that the court said that the doctrine "might be allowed" and secondly that it applied "to prevent a failure of justice".

532. In my opinion the rationale of the doctrine and the criterion for its application are found in the phrase "to prevent a failure of justice".

535. In support of that proposition I refer to what Brennan, J. said in Builders' Registration Board of Queensland v. Rauber, supra, at p.385:

"The common law allows an exception to the disqualifying effect of bias, whether arising from an earlier pre-judgment of a material question, from interest, or from some other cause where the exception is necessary to allow the functioning of the sole tribunal with power to act. In 1742 in the case between the Parishes of Great Charte v. Kennington, it was said that an exception to the rule that a person interested could not be a judge `might be allowed to prevent a failure of justice'. The exception was acknowledge by the advice given by the judges in Dimes v. Proprietors of Grand Junction Canal [1852] EngR 789; (1852) 3 H.L.C. 759 at pp.787-788; [1852] EngR 789; 10 E.R. 301 at p.313 and by the Privy Council in The Judges v. Attorney-General for Saskatchewan (1937) 53 T.L.R. 464."

539. In the later case of Laws v. Australian Broadcasting Tribunal, supra, Mason, C.J. and Brennan, J. expressed the principle at p.89 as follows -

"The rule of necessary gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. Those rules may be excluded by statute."

543. In the same case Deane, J. at p.96 described the rule as follows -

"That rule operates to qualify the effect of what would otherwise be actual or ostensible disqualifying bias so as to enable the discharge of public functions in circumstances where, but for its operation, the discharge of those functions would be frustrated with consequent public or private detriment. There are, however, two prima facie qualifications of the rule. First, the rule will not apply in circumstances where its application would involve positive and substantial injustice since it cannot be presumed that the policy of either the legislature or the law is that the rule of necessity should represent an instrument of such injustice. Second, when the rule does apply, it applies only to the extent that necessity justifies."

547. His Honour then considered the question of balancing the justice of the circumstances. His Honour said -

"The question whether the application of the rule in necessity would involve positive and substantial injustice must be answered by reference to the circumstances of the particular case."

551. In considering whether the doctrine should apply, to prevent a failure of justice, it is necessary to consider justice to all parties. This involves considering and weighing up all relevant facts and in the final analysis it is a question of fact and degree. The relevant matters would include the qualifications and experience of the adjudicator, the nature of the bias, the degree and gravity of the bias, whether it is pecuniary, actual or perceived, the conduct of the parties, whether there is a right of appeal and the public interest where applicable.

554. In the Laws case, supra, at p.96 Deane, J. stated the following with respect to the conduct of the parties -

"In particular, the circumstances that, in such a case, the conflict of interest or extrinsic knowledge arose from or was caused by the deliberate act of the party who would otherwise be entitled to complain of bias may dictate a negative answer to the question of whether the application of the rule would involve positive and substantial injustice to that party. Conversely, the fact that such a conflict of interest or extrinsic knowledge arose from or was caused by some voluntary collateral act of the adjudicator may constitute a powerful consideration favouring an affirmative answer to that question."

558. The criterion for the application of the doctrine set out above is supported by the leading text book writers.

561. The learned authors of Judicial Review of Administrative Action (5th ed.), De Smith, Woolf and Jowell at p.544 stated the following -

"A person who is subject to disqualification at common law may be required to decide the matter if there is no other competent tribunal or if a quorum cannot be formed without him. Here the doctrine necessity is applied to prevent a failure of justice."

565. Sir William Wade in the 7th edition of his work: Administrative Law at p.476 expressed to the principle as follows -

"In all the cases so far mentioned the disqualified adjudicator could be dispensed with or replaced by someone to whom the objection did not apply. But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity; for otherwise there is no means of deciding and the machinery of justice or administration will break down."

569. Mr Irving submitted that the doctrine of necessity did not apply in the present case for two broad reasons.

572. First, he submitted that the doctrine could not apply because Mr Parry had prejudged the issue and the doctrine did not apply to a disciplinary tribunal where a man's right to earn his livelihood may be affected by the decision of the adjudicator.

575. His second submission was that the doctrine did not apply where the adjudicator by his own voluntary conduct brought about the situation which resulted in the finding of bias.

578. In support of his submission Mr Irving referred to what Deane, J. said in the Builders' Registration case and what Gaudron and McHugh, JJ. said in the Laws case.

581. In the Builders' Registration case Deane, J. at p.392 in a statement which was plainly obiter after observing that the rule may apply to a statutory board went on to say -

"Such a rule may, in the present, be applicable to reinforce the plain implication from the provisions of the Act that the rules of natural justice are excluded to the extent that they would have the effect that the performance by the board of one function would disqualify it from performing another function with the Act entrusts to it. It would not however, in disciplinary proceedings in which a man's right to earn his livelihood is involved, operate either to preclude the need to observe rules of natural justice which the Act plainly envisages will bind the board or to avoid the consequences of the failure to observe those rules."

585. What his Honour said in the Laws' case is inconsistent with the observations made in the Builders' Registration case. What his Honour said was obiter, it clearly does not bind me, and I decline to accept the statement as a principle of law. It is contrary to the object of the doctrine of necessity.

588. In the Laws' case, Gaudron and McHugh, JJ. at p.102 after noting that it was unnecessary to determine whether the doctrine of necessity applied said -

"Whatever the precise scope of the doctrine of necessity in the natural justice context, it seems contrary to all principles of fairness that, on the ground of necessity, a person should have to submit to a decision made by a person who has already prejudged the issue. Likewise, there seems much to be said for the view that, in the absence of a contrary statutory intention, the ground of necessity should not require a person to submit to a decision made or to be made by a person who is reasonably believed to have prejudged the issue."

592. What their Honours said is obiter, contrary to the principles stated by Mason, C.J. and Brennan and Deane, JJ. in the same case, do not bind me and I decline to follow the dicta as expressing the law. In my opinion it emasculates the very object of the doctrine to deny its existence in those circumstances. In the end it is a matter of determining whether justice would be denied in the circumstances if the doctrine was not applied.

595. In my opinion there is no principle of law which precludes the application of the doctrine in the present circumstances.

598. The basis for Mr Irving's second submission is found in an article by Mr R.R.S. Tracey; Disqualified Adjudicators: The Doctrine of Necessity in Public Law", Public Law (1982) 628 where the learned author said at p.635 the following -

"Moreover the weight of authority clearly supports the proposition that, where a conflicting role is voluntarily assumed, the doctrine of necessity will not operate even if no other qualified adjudicators can be found."

602. Mr Irving based upon that statement of principle, submitted that Mr Parry, by his voluntary conduct, had created the conflicting role and accordingly the doctrine could not apply.

605. The learned author referred to a number of cases but in my opinion when properly analysed the weight of authority does not support the rule. Nevertheless the proposition is contrary to what the High Court has recently said and states a rule which emasculates the doctrine and the flexibility of the common law to achieve justice. In my opinion it is a factor to be taken into account where the conflicting role is voluntarily assumed but there is no rule of law which says that the doctrine cannot apply even when there is such conduct.

608. It follows that I reject Mr Irving's second submission but I do accept that the question of the conduct of both parties is relevant to the issue whether the doctrine applies.

611. In determining whether the doctrine applies, the first enquiry concerns the statutory framework and whether it excludes the doctrine. There is nothing in the Act which excludes the doctrine and Mr Irving did not submit that it was excluded by any statutory provision.

614. I now turn to consider the circumstances to determine the question whether the doctrine should be applied to prevent the failure of justice.

617. The first relevant matter is that the allegation of bias is based upon a perceived or ostensible bias and not actual bias. Further, Mr Parry has held the position of senior officer of the plaintiff board and its predecessor for many years and has sat on disciplinary tribunals in the past.

620. There are two broad areas to consider at the disciplinary hearing. The first is whether the defendant has committed the alleged offences and the second issue concerns penalty if an adverse finding is made. With respect to the first issue the fact that he agreed to plead guilty to the charges can be proven in evidence at the hearing, as an admission. The fact that Mr Parry learned of this admission on 13 October 1997 during the settlement discussions is of little consequence on the question of perceived bias. That is, because the admission will be proved before him at the disciplinary hearing. No doubt the defendant will be given an opportunity to explain away or in some way qualify the effect of the admission.

623. It is the second issue, namely, the question of penalty which has been compromised by the discussions held on 13 October 1997. It is noted that the board has not agreed to a dismissal, and that it in the scale of penalties available what the defendant has agreed to is not the severest penalty that could be imposed. By withdrawing his agreement to the course proposed the defendant is now exposing himself to a more severe penalty but in my opinion the question of perceived bias has to be examined in the light of the fact that it was the considered opinion of Mr Parry that the proposed penalty was appropriate in all the circumstances.

626. This brings me to the conduct of the parties.

629. Mr Parry was involved in the discussions at court on 13 October. I accept that he did not have to be there. But knowledge of the proposed settlement would have come to his notice that day or shortly thereafter. He was present because the defendant had intimated prior to 13 October an interest in settling the litigation. The defendant, the union representative and their lawyers, did not object to Mr Parry's presence or his participation in the discussions. This was not surprising because it was apparent to all that the presence of the President would facilitate and expedite any settlement.

632. The parties negotiated solemnly and in good faith and settlement was reached. As a result, the proceeding in the Federal Court was dismissed. The first step in implementing the settlement was taken.

635. The President and the then Chief Executive Officer then took further steps to implement the settlement. A date for the hearing was fixed and the defendant was informed. The President and the Chief Executive Fire Officer made the decision that the President was to hear the charges.

638. The defendant changed his mind, breached the agreement and it was this breach of contract which led to the objection to Mr Parry hearing the charges.

641. Now the defendant wishes to take advantage of his own wrong. To permit him to do so offends justice.

644. As Deane, J. said in the Laws case supra, such circumstances "may dictate a negative answer to the question whether the application of the rule (of necessity) would involve positive and substantial injustice to that party."

650. The legislature has provided a disciplinary procedure to deal with officers charged with offences. The Fire Brigade is a disciplined service which operates to protect the public. It is important that discipline is maintained and the disciplinary procedure ensures that.

653. To avoid disciplinary proceedings by setting up a situation in breach of contract defeats the intent of parliament that disciplinary charges should be brought and determined and also undermines discipline in a service which is established for the public benefit.

656. In the final analysis the court has to weigh up the alleged injustice if the matter proceeds before a person perceived to be biased, against the alleged injustice if the hearing does not proceed.

659. I have carefully considered the above matters. In addition, I have taken into account the right of the defendant to appeal any decision made by Mr Parry to an independent body called the Metropolitan Fire and Emergency Services Appeals Commission - see s.79H. The appeal to the Commission against any decision made by Mr Parry against Mr Churchill would be by way of re-hearing - see s.79I. On a re-hearing, the Commission would not in any way be bound or influenced, by the decision made by Mr Parry.

662. Taking into account all the circumstances, the balance is in favour of applying the doctrine of necessity to avoid the failure of justice.

665. It follows that Mr Parry can hear the charges brought against the defendant.

670. Under Section 78B(2) of the old legislation, the procedure required the Chief Fire Officer to determine whether he should hear the charges himself or refer them to a hearing before the President.

673. It was submitted that in the circumstances natural justice demanded that a person charged with an offence should have the opportunity to be heard on the question as to who should hear the charges.

676. In my opinion it is clear from the statutory framework that the step to be taken by the Chief Fire Officer is a sifting process pursuant to which he will make a decision whether he will hear the matter or refer it to the President. In my opinion the rules of natural justice do not apply to that statutory step because no decision is made which affects the rights of the person charged. All that the Chief Fire Officer does is to make a decision to hear the charges himself or have them heard by another Tribunal. It is the ultimate determination of the charges which affects the interests of the person accused.

679. In any event, by entering into the agreement and accepting that a certain penalty should follow his plea of guilt, the defendant waived any such right to a hearing. By reason of the agreement the only tribunal that could hear the charges was that presided over by the President - see section 78B(3) of the unamended Act.

682. It follows that if the defendant was entitled to an opportunity to be heard, he waived it by his conduct in agreeing, to plead guilty and to the penalty which was proposed.

687. The plaintiff seeks a declaration that Mr Parry is entitled to hear the charges. Mr Irving submitted that the court in the exercise of its discretion should refuse the declaratory relief sought. He emphasised that the court's jurisdiction is discretionary.

690. He submitted that the plaintiff in effect was seeking to appeal the decision made by Mr Parry disqualifying himself and that there was no appeal from such a decision. He submitted the only procedure available was by way of judicial review pursuant to Order 56 of the Rules of Court. A time limit is imposed by the Rules and judicial review would no longer be available to the plaintiff. In substance, he submitted the plaintiff was avoiding the narrow judicial review jurisdiction and seeking to, in effect, appeal the decision made.

693. He referred the court to a number of cases in England where a party had sought a declaration in circumstances where it was seeking to appeal a decision. He submitted that the court should not make a declaratory order where the plaintiff should have proceeded by way of judicial review.

696. He referred me to Healey v. Minister of Health (1955) 1 Q.B. 221, Punton v. Minister of Pensions and National Insurance (No. 2) (1964) 1 W.L.R. 236 and the House of Lords decision of O'Reilly v. Mackmann [1983] UKHL 1; (1983) 2 A.C. 237. Those cases do establish that a court cannot assume an appellate jurisdiction where the legislature has not created one, and as a general rule it is an abuse of the process of court to proceed by way of writ in circumstances where the plaintiff was seeking a remedy for the infringement of rights protected by public law and the proper procedure was by way of judicial review.

699. Whether or not those decisions represent the law in this state, I do not pause to consider. Mr Irving's submission misconceives the plaintiff's case. It does not seek to appeal the decision made by Mr Parry on 25 November 1997. Mr Parry, having made that decision, later realised he was in error and determined thereafter to hear the charges. What the plaintiff seeks is a declaration that his decision to hear the charges is in accordance with the law. There is no question of any appeal. The plaintiff is not seeking directly or indirectly any order setting aside the decision made on 25 November 1997. No decision is under attack by the plaintiff. The plaintiff is not seeking to quash Mr Parry's decision disqualifying himself.

702. In my opinion, it is an appropriate case for this court to make a declaration. Mr Irving did not submit any other bar to the remedy and accordingly, I propose to grant the plaintiff the relief it seeks.

707. Subject to submissions from counsel, I propose to make the following orders:

(i) A declaration that:

(a) the charges laid against the defendant under s.78B(1) of the

Metropolitan Fire Brigade's Act 1958, on 13 May 1996:

(i) have been lawfully referred under s.78B(2) of the said

Act to John Brian Parry,

(ii) must be heard by the said John Brian Parry pursuant to

s.78B(3) of the said Act.

(b) If after hearing the charges the said John Brian Parry is

satisfied that an offence has been committed, he may exercise

the powers contained in s.78B(3) of the Act, as it was before

1 September 1997 in respect of the charges.

(ii) That the defendant pay the plaintiff's costs, including any reserved costs.

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