Notice of appeal in Matter No. M46 of 1993 struck out as incompetent.

MASON CJ, BRENNAN, DEANE, DAWSON AND GAUDRON JJ The Hoyts

Corporation Pty. Limited, Delarene Pty. Ltd. and Rampton Pty. Ltd.

("the applicants") applied to Toohey J for an order nisi for writs

of prohibition and certiorari with respect to a decision by the

Australian Industrial Relations Commission ("the Commission") to make

an award regulating the wages and conditions of persons employed in

the applicants' cinemas ("Hoyts cinemas"). The application was

refused. The applicants then lodged a notice of appeal and an

2. Separate proceedings were instituted, it seems, because the applicants were not sure whether the judgment of Toohey J was final

or interlocutory. They now concede - and rightly so - that the

decision was interlocutory ((1) See Coles v. Wood (1981) 1

NSWLR 723 and, more generally, Hall v. Nominal Defendant [1966] HCA 36; (1966)

117 CLR 423; Licul v. Corney [1976] HCA 6; (1976) 50 ALJR 439; 8 ALR 437;

Carr v. Finance Corporation of Australia Ltd. (No.1) [1981] HCA 20; (1981) 147 CLR

246.). As there is no appeal from an interlocutory decision except by

leave of the Court ((2) See the Judiciary Act 1903 (Cth), s.34(2).), the notice of appeal must be struck out as incompetent.

3. The Commission's decision to make an award followed lengthy hearings relating to several disputes between the applicants and the

respondents, the Media, Entertainment and Arts Alliance ("the Media

Alliance") and the Theatre Managers' Association ("the TMA"). So far

as concerns this matter, the first dispute occurred in 1988. Until

then, wages and conditions of employees in Hoyts cinemas were governed

by awards of the Australian Conciliation and Arbitration Commission

("the Conciliation Commission") ((3) The Theatrical Employees

(Cinema and Drive-In Industry) Award 1983 applied to employees who were

or were eligible to be members of the Australian Theatrical and

Amusement Employees Association, which amalgamated with other

organizations of employees to become the Media Alliance; the Theatre

Managers' Award 1986 applied to employees who were or were eligible to

be members of the TMA. Note that these awards have continued to

have effect for employees of The Hoyts Corporation Pty. Limited,

but have no effect for employees of Delarene Pty. Ltd. and

Rampton Pty. Ltd. as those companies are not respondents to

as the "Canberra Agreement". The awards and agreement also applied to

persons employed in the theatres of the Greater Union Organization

Pty. Ltd. ("Greater Union") and Village Roadshow Corporation Limited

("Village Roadshow"). The Canberra Agreement came to an end in 1988.

It was renewed by Greater Union and Village Roadshow, but not by

Hoyts. That led to industrial action by Hoyts' employees and, in due

course, to the notification of an industrial dispute under the

Conciliation and Arbitration Act 1904 (Cth) ("the Conciliation

Act") ((4) The applicants operate cinemas in various States and it

is clear that this dispute was an interstate dispute.). There was no

immediate resolution of the matter and various other notifications were

given and various proceedings instituted, initially under the

Conciliation Act and, later, under the Industrial Relations Act 1988

4. It seems that the decision not to renew the Canberra Agreement was based, at least in part, on the view that the wages and conditions

which applied generally in the cinema and drive-in industry were no

longer appropriate for Hoyts cinemas. Eventually, one of the

applicants, The Hoyts Corporation Pty. Limited ("Hoyts"), commenced

proceedings with a view to obtaining a separate award for persons

employed in Hoyts cinemas and binding on the Media Alliance and the

TMA. That application was referred to a Full Bench of the Commission,

along with various other proceedings involving the applicants and the

respondents. At all times, Commissioner Fogarty has been a member of

5. Various matters were in issue in the proceedings before the Full Bench, including overtime and penalty rates. Between March and July

1992, the applicants entered into individual industrial agreements

with a number of their employees, and applications by those employees

to have their agreements certified under s.115 of the Act were also

referred to the Full Bench ((5) See this Court's earlier decision on

this aspect of the matter: Re Media, Entertainment and Arts Alliance;

Ex parte Hoyts Corporation Pty. Ltd. [1993] HCA 18; (1993) 67 ALJR 389; 112 ALR

193. Note that s.115 was repealed by the Industrial Relations

Amendment Act 1992 (Cth) and replaced by s.134C and s.134E with

effect from 23 July 1992. Note also s.19 of that amending Act

which is the transitional section allowing s.115 applications to

be dealt with under the new regime.). The agreements contained

overtime and penalty rates which, in the view of the respondents, did

not conform to general award standards. The agreements became a

prominent feature in the proceedings with the applicants arguing,

contrary to the original application by Hoyts, that no award should be

made and that they should be free to contract with individual

employees. Alternatively, they claimed that the terms and conditions in

any award made by the Commission should be the same as those in the

agreements. The respondents proposed other terms and conditions and,

in particular, opposed the applicants' proposals with respect to

6. While the proceedings were before the Full Bench, one of the organizations of employees which later amalgamated to form the

Media Alliance, the Australian Theatrical and Amusement Employees

Association, created a dispute with Greater Union and Village Roadshow

by serving a log of claims which was not acceded to. In December

1991, Commissioner Fogarty made a consent award in settlement of that

dispute ((6) The Theatrical Employees (The Greater Union

Organisation and Village Roadshow) Award 1991.). The applicants

applied to have the award set aside, apparently out of concern that it

might have some flow-on effect. That application, which ultimately was

not successful, was also referred to the Full Bench ((7) See Re

Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty.

Ltd. (Hoyts, Delarene and Rampton Award) [1993] HCA 40; (1993) 67 ALJR 723; 115

7. The Full Bench handed down an interim award on 12 June 1992 and proceedings continued during the latter part of that year with respect

to the various matters still in issue between the applicants and the

respondents. The evidence was complete, counsel for the applicants

had spoken to his written submissions and the advocate for the TMA,

Mr Weidner, was speaking to his written submissions when, on

25 September, there was an exchange with a member of the Bench,

Polites D.P, concerning some aspect of the renewed Canberra

Agreement. It seems that the question was then answered, but perhaps

not fully. Mr Weidner returned to the question on 5 October, saying:

"And as I indicated in my address ..., that since that time

and at quite recent times, the Theatre Managers' Association

has completed a comprehensive agreement on conditions

of employment (and) rates of pay with the Greater Union

organisation, and that agreement has been completed and

signed by all parties, and it is for a period of two years,

and does delete that clause 4 from the 1989 agreement.

It does not contain any ceiling what so ever. The salary

package in that new agreement which I have conveyed to

Mr Caldwell, the instructing solicitor, by telephone when he

was asking me about the agreement, does contain a salary

scale which relates to managers responsibility, depending on

the size of the auditorium."

Mr Weidner gave some other details of the new agreement between

Greater Union and the TMA ("the Greater Union Agreement"). Counsel

"could we ... ask that Mr Weidner make that agreement

available. He has spoken to it and indicated what is in it.

We do not have a copy of it and have asked for and have not

been afforded one. If any of those submissions are to be

relied upon then the agreement should be made available so

that we can tender it to the commission."

Mr Weidner said that he was not relying on the agreement and would

have to obtain instructions as to counsel's request. Counsel

persisted with the request and the presiding member of the Bench,

Boulton J, announced that they did not intend, at that stage, to make

any ruling on the matter, but would "consider the matter and announce

any ruling that (they) wish to make". The request was renewed the

following day and the parties were asked to discuss the matter.

Boulton J added that "if necessary it can be raised when we sit again

in these matters". It was not raised again until 8 January 1993.

8. On 6 January, the applicants learned as a result of searches in the Registry of the Commission that the Greater Union Agreement had

been certified by Commissioner Fogarty on 17 September 1992. The

proceedings were then complete, save for supplementary written

submissions as to the jurisdictional basis of certain claims which

the respondents claimed should be included in an award. On 8 January

1993, a letter was sent to Commissioner Fogarty submitting that, as

he had failed to disclose that he had certified the agreement, it was

inappropriate for him to continue as a member of the Full Bench. The

Full Bench sat to hear argument on the question on 25 January.

9. On 1 April 1993, Commissioner Fogarty announced that he would not disqualify himself. He published reasons for his decision.

Immediately afterwards, the Full Bench handed down its decision to

make an award having effect from 1 May and containing terms and

conditions as then announced. The applicants sought prohibition and

certiorari, claiming a reasonable apprehension of bias on the part of

Commissioner Fogarty. There is no suggestion of actual bias.

10. The applicants claim that the Greater Union Agreement was relevant to the issues in the proceedings before the Full Bench. And

on that basis, they argue that the failure by Commissioner Fogarty to

disclose his knowledge of the agreement, as would have occurred had he

disclosed that he certified it, is analogous with the situation where

a judge "hear(s) evidence or receive(s) representations from one side

behind the back of the other" ((8) Re J.R.L.; Ex parte C.J.L. [1986] HCA 39; (1986)

161 CLR 342, at p.346. See also Kanda v. Govt. of Malaya [1962] UKPC 2; (1962)

AC 322, at p.337.). A slightly different version of the argument

puts emphasis on particular terms of the Greater Union Agreement,

especially those relating to overtime and penalty rates. It is said

that the agreement of the TMA to these terms casts doubt on the bona

fides of the TMA in opposing similar conditions when sought by Hoyts.

11. The rule against bias is directed to ensuring that a judge or a member of a tribunal that is bound to act judicially brings and is

seen to bring "an impartial and unprejudiced mind to the resolution

of the question" to be decided ((9) Livesey v. New South Wales Bar

Association [1983] HCA 17; (1983) 151 CLR 288, at p.294. See also Reg. v. Watson;

Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, at p.262; Vakauta v. Kelly

[1989] HCA 44; (1989) 167 CLR 568; Grassby v. The Queen [1989] HCA 45; (1989) 168 CLR 1; Laws

v. Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70;

Re Polites; Ex parte Hoyts Corporation Pty. Ltd. [1991] HCA 25; (1991) 173

CLR 78, at pp.91-92; Re Finance Sector Union of Australia; Ex

parte Illaton [1992] HCA 30; (1992) 66 ALJR 583; 107 ALR 581.). One aspect of

the rule, and the only one that is relevant for immediate purposes, is

that the decision should be made on the basis of the evidence and the

argument in the case, and not on the basis of information or knowledge

which is independently acquired. That aspect of the rule is similar to

but not identical with the rule of procedural fairness which requires

that a person be given an opportunity to meet the case against him or

her. However, in the case of the rule against bias, the question is

not whether there is or was an opportunity to present or answer a

case, but whether, in the circumstances, the parties or the public

might entertain a reasonable apprehension that information or

knowledge which has been independently acquired will influence the

12. As a general rule, a judge or a member of a tribunal that is bound to act judicially should disclose his or her independent

knowledge of factual matters that bear or may bear on the decision to

be made ((10) See, for example, Reg. v. Industrial Appeals Court; Ex

parte Maher [1978] VicRp 12; (1978) VR 126, at p.143.). In some cases, it may be

that he or she should stand down from the proceedings ((11) ibid; at

p.144.). However, precisely what should be disclosed and what, if

any, other action should be taken may involve a consideration of the

nature of the tribunal, its composition and organization ((12) See,

with respect to the Commission, Re Polites; Ex parte Hoyts Corporation

Pty. Ltd. (1991) 173 CLR, at pp.86-88. See also Labour Relations

Board of Saskatchewan v. John East Iron Works Ltd. (1949) AC 134, at

13. The primary question raised by the argument for the applicants is whether the Greater Union Agreement was of any relevance to the

decision to be made by the Full Bench. In this regard, it may be

accepted that, notwithstanding their original claim that Hoyts cinemas

should be separately regulated, the applicants take the view that what

happens in the theatres of Greater Union is of direct relevance to

them. And in the light of their application to set aside the consent

award made in December 1991 with respect to the Greater Union and

Village Roadshow theatres, it may be taken that their views in this

regard were known to the Full Bench. However, the question is

not whether the matter is of relevance to the applicants, but whether

it was relevant to the decision to be made by the Full Bench.

14. It was suggested in argument, but only faintly, that the Greater Union Agreement was relevant to the question whether an award should

be made for Hoyts cinemas, as distinct from what its terms should be.

It is to be remembered that the existence of the agreement was

disclosed to the Full Bench and to the applicants, as were some of

its terms. What was not disclosed was the fact that it had been

certified. But certification could have no bearing on the question

whether the applicants' employees should or should not have an award,

particularly as there was no agreement between the applicants and the

respondents with respect to matters in issue before the Full Bench.

Thus, the only question is whether the terms of the Greater Union

Agreement were relevant to the provisions to be included in an award,

if, as happened, the Commission should decide on that course.

15. The terms and conditions which apply in one undertaking or enterprise may well be relevant to a determination by the Commission

as to those that should apply in another. For example, there may be

some recognized nexus whereby wages or conditions in one automatically

flow to the other ((13) Note, however, the structural efficiency

principle in the National Wage Case 1988 (1988) 25 IR 170; [30

AILR 327](/cgi-bin/viewdoc/au/journals/AILR/30/327.html "View Case"); National Wage Case 1989 (1989) 30 IR 81; [31 AILR

286.](/cgi-bin/viewdoc/au/journals/AILR/31/286.html "View Case") See also Review of Wage Fixing Principles October 1993, Print

K9700, 25 October 1993, at p.20.). Even if there is no nexus, it may

be that the terms and conditions can be taken into account, either

specifically or as part of a general pattern, in determining what is

appropriate for the other enterprise. Moreover, in the case of

establishments in the same industry, s.94 of the Act directs the

Commission to "provide, so far as possible and so far as the Commission

considers proper, for uniformity throughout an industry carried on by

employers in relation to hours of work, holidays and general conditions

in the industry". However, that direction is subject to s.95 which

"The Commission is not empowered to include terms in

an award ... that are based on the terms of a certified

agreement unless the Commission is satisfied that including

the terms in the award, or making the award, would not:

(a) be inconsistent with principles established by

a Full Bench that apply in relation to the

determination of wages and conditions of

employment; or

(b) otherwise be contrary to the public interest."

16. In the light of s.95 of the Act, the Commission could not have regard to the terms and conditions of the Greater Union Agreement for

the purpose of reaching a decision as to the terms and conditions to

be included in the award unless positively satisfied as to the matters

specified in pars (a) and (b). And those matters were not satisfied

merely by certification. Certification is governed by s.134E and

s.134F of the Act. Apart from formal requirements with respect to

consultation ((14) s.134E(1)(c) and (d), see also s.134E(3).), the

period of operation ((15) s.134E(1)(f).) and, in the case of an

agreement relating to a single business, the identity of the parties

((16) s.134E(1)(e)(i), (4) and (5).) and the method of negotiation

((17) s.134E(1)(e)(ii).), s.134E requires the Commission to be

satisfied, before certifying an agreement, that it does not

disadvantage the employees who are covered by it ((18) s.134E(1)(a).

"For the purposes of paragraph (1)(a), an

agreement is only taken to disadvantage employees in

relation to their terms and conditions of employment

if:

(a) certification of the agreement would result in

the reduction of any entitlements or protections

of those employees under:

(i) an award; or

(ii) any other law of the Commonwealth or of a

State or Territory that the Commission

thinks relevant; and

(b) in the context of their terms and conditions of

employment considered as a whole, the Commission

considers that the reduction is contrary to the

public interest.") and

that it contains dispute resolution procedures ((19) s.134E(1)(b).).

If those conditions are satisfied, an agreement which applies only to a

single business (as is the case with the Greater Union Agreement) must

be certified unless the Commission "thinks that any of the terms is

one that the Commission would not have power to include in an award

17. Given the process of certification and the terms of s.95 of the Act which, prima facie at least, prevented the Full Bench from taking

the Greater Union Agreement into account and given that no one relied

on the agreement, there was no basis whatsoever for apprehension by

the parties or the public that the agreement would in any way

influence the Full Bench or Commissioner Fogarty in reaching a

decision on the matters in issue between the applicants and the

respondents. The only question that could possibly arise is whether

the applicants should have been afforded some further opportunity to

use the Greater Union Agreement in support of their own case. And

that, in essence, is what is involved in the second version of their

18. In the second version of their argument, the applicants rely on specific terms of the Greater Union Agreement, pointing out that there

is no provision for overtime payments, that penalty rates are payable

only on Christmas Day and that the agreement involves side agreements

with individual employees. The side agreements were apparently

provided to Commissioner Fogarty before being placed in sealed

envelopes. The applicants do not know the terms of the side

agreements and do not claim that the Greater Union Agreement puts them

at a competitive disadvantage. However, they claim that the Greater

Union Agreement allows for more flexibility than do the terms of the

award announced by the Full Bench. And they say that, if they had

known its terms, they would have "(sought) leave to recall (the TMA

witnesses) for cross-examination, (to) put to them these (questions)

... 'Why is it that with Greater Union you are prepared to have

individual letters of agreement, but with Hoyts, you want an award

that covers managers? Why is it you are prepared not to have overtime

with Greater Union, but you want overtime with Hoyts, penalty rates

19. The significance of the submission with respect to the more flexible arrangements permitted by the Greater Union Agreement is

not readily apparent. Presumably, it is directed to suggesting that

there is a reasonable apprehension that Commissioner Fogarty favoured

Greater Union at the expense of the applicants. If so, it does not

withstand scrutiny. The agreement was the product of negotiations

between Greater Union and the TMA; it was not in any way the product

of Commissioner Fogarty's efforts. And as already explained, its

certification was virtually automatic if it complied with s.134E.

Certification could only be refused in the limited circumstances

already outlined. Given the nature of the exercise involved in

certification of an agreement and the quite different exercise

involved in determining by arbitration what provisions should be

included in an award, there is no basis whatsoever for any

apprehension that Commissioner Fogarty favoured Greater Union at

20. The submission relating to the course the applicants would have adopted had they known what was in the Greater Union Agreement is

directed to establishing that there is a reasonable apprehension that

Commissioner Fogarty protected the TMA case from attack. It is to

be emphasised that the hypothesised attack depends on a knowledge of

the terms of the agreement, and not on knowledge of its certification.

Quite apart from that, the submission depends on there being an

obligation to afford the applicants an opportunity to counter the TMA

case by pointing to the terms of the Greater Union Agreement.

21. As already indicated, the proceedings were virtually complete when the Greater Union Agreement was first mentioned. By then, the

applicants had presented evidence and submissions on the merits of

their proposals, including those with respect to individual work

agreements, overtime and penalty rates. Even at that late stage,

the Commission held that they could raise the question whether

the agreement should be produced. They did not do so. In these

circumstances, the most that can be said of Commissioner Fogarty's

silence is that, had the applicants known that the agreement had been

certified, they may have taken earlier steps to ascertain its terms by

inspecting it in the Registry, if that course was open to them ((21)

Section 143 requires the Commission in certain circumstances to publish

awards, including certified agreements (s.4), and make them available

for inspection. Section 143A, which was introduced with other

amendments in 1992, provides an exception to the requirement to publish

where a certified agreement applies "only to a single business, part of

a single business or a single place of work". The sections do not

explicitly deal with the question whether a copy of such an agreement

must be available for inspection even though it need not be published.

As noted above, the detail of the agreement was in fact obtained

by the solicitor for the applicants searching the Registry

and, if so, they may have refined or in some way re-fashioned their

22. Outside a criminal trial ((22) See R. v. Hopper (1915) 2 KB 431, at p.435; Van Den Hoek v. The Queen [1986] HCA 76; (1986) 161 CLR 158, at pp.161-162

as to the obligation in a criminal trial with respect to defences

which are open on the evidence but not raised.), there is no

requirement that a judge or member of a tribunal do more than afford a

party a reasonable opportunity to present his or her case. In

particular, there is no requirement to point to arguments or evidence

that may assist in making the case. A fortiori, when the evidence is

not tendered, is not relied upon and is subject to a prohibition of the

kind found in s.95 of the Act. That being so, there is no basis for a

suggestion that Commissioner Fogarty should have disclosed the fact

that he had certified the Greater Union Agreement and, hence, no

reasonable basis for apprehension that he was protecting the TMA case