Re Keely; Ex parte Ansett Transport Industries (Operations) Pty Ltd [1990] HCA 27

The grounds of the AFAP's application in the Federal Court are that the relevant decisions were not authorised by the Migration Act 1958 Cth or the regulations made thereunder; that the decisions constituted an improper exercise of the power conferred by the Migration Act or the regulations; that irrelevant considerations were taken into account in the making of the decisions; that the discretionary power vested in the decision-makers was exercised in accordance with a rule or policy without regard to the merits of the particular cases and that breaches of natural justice occurred in connection with the making of the decisions. The last ground is based on the claim that, amongst other things, the AFAP was given no notice of the applications made for visas.

On 5 April 1990 the AFAP began proceedings in the Federal Court for an interlocutory injunction restraining the granting of further visas or entry permits to persons seeking to travel to, enter or remain in Australia for the purpose of taking up employment or continuing in employment as airline pilots. The hearing of the application for interlocutory relief was conducted before Keely J and occupied 13 sitting days, during the course of which his Honour made interim orders. He ultimately granted an interlocutory injunction. Initially the proceedings were brought only against the decision-makers and the airlines. During the course of the interlocutory hearing certain non-Australian pilots who had applied for or who had been granted visas or entry permits were added as respondents.

The applicants base their claims for orders nisi upon an allegation that, in his conduct of the proceedings in the Federal Court for interlocutory relief, Keely J displayed apparent or ostensible bias against them. They do not attack the interlocutory injunction granted by Keely J, but seek to prohibit him from determining entitlement to final relief. Keely J has fixed 23 July 1990 as the date for the further hearing of the matter before him.

I take the following account of the circumstances giving rise to the proceedings in the Federal Court from the affidavits filed in support of the applications before me. The application for orders of review arose out of events which followed a dispute between the AFAP and the airlines over remuneration in 1989. On 17 August 1989 the AFAP directed its members not to sign on at any airport before 9 00 am local time and not to depart from any airport at a time which would involve them in signing off after 5 00 pm local time at the next airport. On 18 August 1989 the airlines commenced proceedings before the Australian Industrial Relations Commission seeking cancellation of the various awards relating to the employment of pilots to which they and the AFAP were parties. On 21 August 1989 the Industrial Relations Commission cancelled the awards. Shortly afterwards, some of the airlines commenced proceedings in the Supreme Court of Victoria and the Supreme Court of New South Wales claiming damages against some of the pilots. On 23 and 24 August 1989 almost all of the pilots employed by the airlines resigned by giving notice to their employers. As a consequence the operations of the airlines came to a virtual standstill.

Following the resignation of the pilots, the airlines took emergency measures to provide limited services and thereafter commenced to invite applications from suitably qualified pilots to fill the positions which were available. On 25 August 1989 proceedings were commenced by the airlines in the Supreme Court of Victoria against the AFAP and some of its officers claiming damages. These proceedings resulted in judgment on 12 February 1990 in favour of the airlines in the total sum of $6,500,000 with costs.

From late August 1989 the airlines sought to recruit pilots in Australia and overseas. They did this by advertisement, by letters to former pilots and by other means. On 30 August 1989 the AFAP published a warning to any pilot accepting employment with any of the airlines that he would be considered to be acting as a strike-breaker and that any terms of settlement of the dispute between the AFAP and the airlines would include provision for the immediate cancellation of any contracts with the strike-breaking pilots.

On 1 November 1989 the Industrial Relations Commission made new awards binding upon the airlines in respect of pilots employed by them. The terms of the awards were in substance the same as the terms of the contracts offered to pilots by the airlines after 24 August 1989. The AFAP was not a party to the awards.

The airlines received insufficient applications from Australian pilots to fill the positions available and, as a consequence, made group applications to the Department of Immigration, Local Government and Ethnic Affairs for the permanent entry to Australia of a number of non-Australian pilots. These applications were made under the Employer Nomination Scheme. On 19 December 1989 amendments to the Migration Act came into force. Under the new provisions, criteria contained in regulations were substituted for a general discretion vested in the Minister. One of the criteria for an employer nomination visa was contained in reg 51(1)(d) of the Migration (Criteria and General) Regulations Cth and was as follows:

The additional criteria in relation to an employer nomination visa are the following criteria:

(d) the employer satisfies the Minister that it has not been possible to find a suitable applicant for the position in Australia.

Much of the argument before Keely J centred around the proper construction of this criterion. In addition, there was a criterion that "the applicant is to be employed or engaged in Australia in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards": see Migration (Criteria and General) Regulations, Sched 1, Item 15.

As I have said, in its application in the Federal Court for orders of review, the AFAP gives as one of its grounds that the decisions to grant visas or entry permits to non-Australian pilots were not authorised by the enactment in pursuance of which it purported to be made. A particular of this ground is:

The Migration Act 1958 (as amended) and the Regulations thereunder (as amended) did not and do not authorise the granting of approvals, visas or entry permits in respect of an alleged temporary or permanent shortage of particular skilled labour in Australia when there is manifestly no such shortage. The decisions were based upon an alleged shortage of airline pilots in Australia, but at all material times there has been no such shortage.

Whilst it was submitted to Keely J by the airlines during the course of the proceedings that he ought not to hear further the application for orders of review because of ostensible bias on his part, it was not submitted that he should decline to determine the application for interlocutory relief. The reason given for this was that interim orders had been made which would be likely to remain in place until such time as the question of interlocutory relief could be dealt with by another judge and that this was less desirable than accepting the terms of the interlocutory injunction. Similar reasons were given before me to explain why no attempt was made to appeal against the injunction granted by Keely J. His Honour was asked to, and did, deal in his reasons for judgment with the submission that he had exhibited ostensible bias. He rejected that submission.

The airlines accept as the test to be applied in any consideration of an allegation of apparent or ostensible bias, that which was recently set out in Grassby v The Queen (1989) 168 CLR 1 at 20:

The test which is to be applied when bias is raised has been clearly laid down. It is whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him: see Livesey v New South Wales Bar Association (1983) 151 CLR 288]; R v Watson; Ex parte Armstrong (1976) 136 CLR 248. If so, then the judge ought not to proceed to hear the matter. Of course, as Gibbs CJ pointed out in R v Simpson; Ex parte Morrison (1984) 154 CLR 101 at 104], the mere expression of the apprehension of bias does not establish that it is reasonably held; that is a matter which must be determined objectively.

The complaint made by the applicants may be summarised as follows. They say that, during the course of proceedings before him, Keely J advanced a case for the AFAP which that body had not put, namely, that the airlines were not able to find suitable applicants in Australia to fill the positions available for pilots because they had expressly or impliedly insisted upon a requirement or requirements which they knew would be unacceptable to members of the AFAP and that the airlines' insistence upon that requirement or those requirements was the reason why insufficient Australian pilots applied to fill the positions available.

The applicants also complain that during the course of argument his Honour used language which gave the impression that his sympathies lay with the AFAP. In particular, the applicants take exception to his Honour's use of the term "strike-breakers" in relation to the non-Australian pilots who were brought to Australia. In addition, the applicants say that Keely J exhibited ostensible bias when he excused "the failure" by AFAP to join the non-Australian pilots who had been granted entry permits or visas and "blamed" the airlines for this omission. A similar apparent bias was said to have been displayed by his Honour in allowing the undertaking as to damages which the AFAP was ultimately required to give to extend to certain persons who were not parties to the proceedings but not others who might be affected by the injunction.

I may say at once that I am unable to discern any manifestation of bias in the last two matters. His Honour apparently took the view that the question of the joinder as parties of the non-Australian pilots who might be directly affected by the application for orders of review was a difficult one for the AFAP and that their identity was clearly better known to the airlines than it was to the AFAP. Whether or not his Honour was justified in taking this view, the fact that he did so does not display any lack of impartiality. The undertaking as to damages which was required was extensive and it was, at the very least, a debatable question whether his Honour should have required it to be extended further to embrace other persons not parties to the proceedings. But these two matters were, I think, not central to the complaints made by the applicants.

The main thrust of the argument put to me by the applicants depended upon extensive reference to the transcript of the proceedings before Keely J. I have given careful consideration to the passages to which I have been referred but it is clearly impracticable to set them all out here.

However, I think that it is nevertheless possible to make some general observations. The course pursued by his Honour of which the applicants complain was plainly prompted by a desire upon his part to test the application of the criterion laid down by reg 51(1)(d) in circumstances which the applicants maintained were irrelevant. His Honour's endeavours were largely speculative having regard to the lack of material before him. The AFAP maintained that a number of matters which his Honour sought to explore were not within its knowledge and the airlines, rightly or wrongly, maintained that they were not relevant and, for that reason, declined to provide information which his Honour sought. Whether the course which his Honour pursued was open to him, or a wise one, having regard to the nature of the proceedings, and whether the airlines were justified in resisting his Honour's requests are not questions which I have to answer. The question is whether, in conducting the proceedings as he did, Keely J apparently exhibited prejudice against the applicants. Undoubtedly, the intervention of his Honour carried with it the risk that it might be misconstrued. As Holroyd Pearce LJ observed in Brassington v Brassington [1962] P 276 at 282:

There are moments when a court may well feel that an indication of the court's point of view may be valuable and helpful to the parties. But such an intervention is always fraught with dangers. To a judge's mind it is axiomatic that any view which he may hold before the conclusion of the case is merely provisional, and that if any evidence or argument subsequently appears which makes his present view of the case untenable he will abandon that view. But litigants often do not appreciate this. They may mistake a provisional view for a concluded prejudgment.

But his Honour was careful to indicate upon numerous occasions that he had not made up his mind upon any question and that his inquiries were exploratory only.

His Honour evidently regarded as of possible relevance relations between the AFAP and its members on the one hand, and the airlines on the other, both before and after the resignation of the pilots. He regarded it as of possible relevance because he thought that it might throw light upon the question whether it had been "possible to find a suitable applicant for the position [of an airline pilot] in Australia". The airlines rejected this view and maintained that all that was relevant was that they had sought in Australia applicants for positions as airline pilots under award terms and conditions and had not been able to attract sufficient applicants. The case put by the AFAP, as appears from the manner in which it opened it, may not have developed the matter in exactly the way in which his Honour sought to develop it, but it is, I think, putting it much too high to suggest, as the airlines do, that his Honour was seeking to put a case for the AFAP which it did not seek to put for itself. One of the grounds upon which the AFAP sought review was that there was no shortage of qualified airline pilots in Australia which, while it may have lacked precision, raised similar considerations to those to which his Honour was adverting. And in his opening, counsel for the AFAP said:

The second point we make, your Honour, under s 5(1)(d) [of the Administrative Decisions (Judicial Review) Act] is that the ENS approval decisions were not authorised by the Act because the Act does not permit permanent entry to be granted in respect of a short-term industrial dispute but is confined to ensuring the supply of skilled employees in the community. There was no shortage of suitable applicants because there was no lack of persons with the necessary employment skills. What there was was a dispute between suitable applicants and their employers.

The conflict which arose may be exemplified by several passages from the transcript. At an early stage of the proceedings Keely J sought to discover the course of negotiations - in particular whether an offer of an increase in salaries had been made by the airlines - before the pilots had resigned. The following exchange took place between counsel for the first group of airlines and his Honour:

HIS HONOUR: I think you misunderstand the question, Mr Uren. I am talking about earlier events. I am talking about before the mass-resignations. It does seem clear that the Pilots Federation was seeking substantial rises in remuneration. The question is simply, did your client - I ask the same question of Mr Sutherland - at any time make any offer of an increase in salaries to the Federation?

MR UREN: At least I am not apprised, for the purposes of this application, with that information. I daresay it is available.

HIS HONOUR: Does it follow that there is no material in this case that throws any light on that question?

MR UREN: I cannot recall because I never looked at the material for that purpose. It would not, in our submission, [have] been a relevant consideration. I am not able to say whether that was or was not so.

HIS HONOUR: Mr Justice Brooking refers, at page 15, to negotiations on various dates and so on and says in the course of one, a representative of the Federation said that a 10 per cent increase for pilots was equivalent to so and so. I take it, in the absence of any information, they were never offered 10 per cent or any other percentage?

HIS HONOUR: Perhaps if you think it is relevant, you may find out and let me know in due course. You may want to contend that it is not relevant, that is your privilege.

MR UREN: If your Honour thought it was relevant, we would appreciate your Honour's view on it.

HIS HONOUR: I think it may be relevant. I will not put it any higher than that, Mr Uren. I do not know enough about the case at this stage, and I am puzzled - there has been more material put in than a Grand National hurdler can jump over, and yet matters which seem prima facie to have, shall we say, some possible relevance to the matter, very broad discretions and so on of the court as to balance of convenience, for example.

I am conscious of the fact that Mr Justice Brooking quoted Lord Templeton on the undesirability of courts predetermining things, and I am not going to fly in breach of that principle, but at this stage I do not assume that those matters are irrelevant. I will not put it any higher than that. Could I put this to you: if no offer of any sort was ever made to the Federation, how is it that Ansett - and the same applies to Australian - can contend that there were no suitably qualified applicants available in Australia?

MR UREN: Because they advertised and they did not come forward.

HIS HONOUR: But that was after the mass-resignations.

MR UREN: After the mass-resignations. Nonetheless, whatever labour testing was done could only have been done after the mass-resignations.

HIS HONOUR: That was at a time, was it not - at least the papers seem to indicate this - that your client and Australian were refusing to negotiate at all with the Federation unless they agreed in advance that whatever was done had to be within the national wage case guidelines?

MR UREN: I do not know whether we were refusing to negotiate. I think the question of compliance with those guidelines was certainly a very relevant matter.

And at a later stage his Honour sought to raise the question with the same counsel whether, after the pilots' resignation, the airlines would not deal with the AFAP. The following exchange took place:

HIS HONOUR: I think that is certainly a distinct oversimplification of the situation, Mr Uren. Perhaps whilst we are on that could I ask you a matter I raised with the Commonwealth counsel yesterday, is it accepted by you that on the material before the court that your client made it clear to potential applicants for employment, that is after the mass resignations, that it simply would not deal with the Pilots Federation?

HIS HONOUR: You say the material does not show that?

MR UREN: Yes. I do not know where your Honour gets that from, I must say. Which leads us to mention a number of matters which I was going to mention arising out of some things that your Honour said yesterday which duty requires me I think to mention.

HIS HONOUR: I am talking about material that you have filed in the court in which that claim has been made, and as far as I have seen so far on this massive material there has been no denial of it. Has the claim been made and has it ever been denied by your client?

MR UREN: Your Honour, I do not know whether it is made in any sworn material and I do not know whether it has been denied.

HIS HONOUR: Perhaps you should get some instructions on that over lunch.

MR UREN: Your Honour, it is either in the material or it is not.

MR UREN: In the material or it is not. I mean instructions will not help in that regard. The situation is that -

MR UREN: Yes. At the very most there may be a number of allegations in the go-arounds and deadlines which are not sworn to which have been put in evidence by us for the purpose of showing the attitude of the Federation from time to time, but in our submission there is no material to justify an - I mean we will say this, our learned friends have not said that there is, but there is certainly no material to justify the matter that your Honour mentioned yesterday that there was any refusal by the airlines to employ Federation members.

MR UREN: Well, your Honour, I must say with the greatest of respect it did sound as though your Honour was saying that it was something which may have -

HIS HONOUR: I think if you bother to look at the transcript you will find that is not correct, Mr Uren. I did discuss certain hypothetical possibilities with Mr Shaw.

At no point did his Honour indicate that he had reached any concluded view upon the questions which he raised with counsel nor, in my opinion, would any of his remarks warrant the view that he had. The matters which he put forward were matters which he conceived may be relevant and which, therefore, ought to have been raised. In Re Lusink and Shaw; Ex parte Shaw (1980) 55 ALJR 12 at 14, Gibbs ACJ referred to R v Watson; Ex parte Armstrong (1976) 136 CLR 248, and said:

In that case it was pointed out, at 264, that it is not uncommon, and sometimes necessary, for a judge, during argument, to formulate propositions for the purpose of enabling their correctness to be tested, and that "as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory". However, in some cases the words or conduct of the judge may be such as to lead the parties reasonably to think that the judge has prejudged an important question in the case, and then prohibition may issue. Of course, the court which is asked to grant prohibition will not lightly conclude that the judge may reasonably be suspected of bias in this sense; it must be "firmly established" that such a suspicion may reasonably be engendered in the minds of the parties or the public, as was made clear by the Court in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554, in the passage cited in R v Watson; Ex parte Armstrong , at 262.

Far from firmly establishing apparent bias on the part of Keely J, I think that the complaints made by the applicants are misconceived. No doubt they held or espoused the view, which they unequivocally expressed on more than one occasion, that his Honour was in error in pursuing the line of inquiry which he did. But it is by no means self-evident that the applicants' interpretation of reg 51(1)(d) is the only possible interpretation and the fact that his Honour suggested that the matter might be approached differently, even against the wishes of the applicants, did not manifest prejudice or lack of impartiality on his part. He may have done so persistently but he was met with an equally persistent resistance from the applicants. Perhaps they were justified in taking the stand which they did. I express no opinion about that. But the mere fact that his Honour did not, for the time being, accept their submissions, constituted no bias or apparent bias on his part. If his Honour expressed views, he did so tentatively and not in any concluded way. He allowed the applicants full opportunity to make whatever submissions they wished about the matters which he sought to explore. If any criticism can be made of the proceedings it must surely be that argument was not more closely confined. His Honour did on occasions use language which might be described as colourful, but he did so indiscriminately and not for the purpose of voicing any prejudice against the applicants. That was simply his mode of expression. His Honour did not, in my view, use emotive terms. The expression "strike-breaker" was a term which had been used in the context of the dispute between the pilots and the airlines and it is not apparent that his Honour used it in any pejorative sense against the airlines. It is quite clear that the applicants disagreed with the line of inquiry undertaken by his Honour, but his Honour's refusal to accept the applicants' submissions (albeit not in any concluded way) displayed no lack of impartiality, nor do I think that any reasonable person would conclude that it did. As was observed by the majority in Vakauta v Kelly (1989) 167 CLR 568 at 571:

In the course of an eloquent passage in his judgment in R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 294], Jacobs J expressed the view that judicial "silence" is a "counsel of perfection". We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.

Of course, judicial intervention can be excessive and should not be such as to deprive counsel of the opportunity to put their case coherently and in the manner in which they wish to put it. But the complaint made by the applicants is not that his Honour intervened rather more than was necessary to indicate the direction in which his mind was travelling; it is that in intervening he manifested apparent bias. I do not think that any such case can be made out and, accordingly, I refuse each of the applications.