Workcover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited - [2000] NSWIRComm 65 - NSWIRComm 1987 case summary — Zoe

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Workcover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited

[2000] NSWIRComm 65

Industrial Relations Commission (NSW)|1987-03-13|Before: Wright J, Cahill VP, Kirby P

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1987-03-13

Before

Wright J, Cahill VP, Kirby P

Catchwords

06/04/2000 DATE OF JUDGMENT: 04/28/2000

Source

Original judgment source is linked above.

Catchwords

06/04/2000 DATE OF JUDGMENT: 04/28/2000

Judgment (106 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Workcover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited [2000] NSWIRComm 65 revised - 15/05/2000 PROSECUTOR PARTIES : WorkCover Authority of New South Wales (Inspector Dubois) DEFENDANT Concrete Constructions Group Limited FILE NUMBER: IRC 5242 of 1997 CORAM: Wright J President CATCHWORDS : Courts and judges - Alleged apprehension of bias - Disqualification application - Judge having appeared against party in interlocutory proceedings prior to appointment - Principles to be applied - Application dismissed Criminal Appeal Act 1912 s 5AE Industrial Relations Act 1996 s 170 s 196 LEGISLATION CITED : Industrial Relations Commission Rules rule 88 Occupational Health and Safety Act 1983 CASES CITED : Aussie Airlines Pty Limited v Australian Airlines Pty Limited (1996) 65 FCR 21, Australian Medical Association v Minister for Health (1991) 38 IR 144, Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411, Brake and Service Centre Drummoyne Pty Ltd v Majik Markets Pty Ltd (1990) 35 IR 351, Caltex Refining Co Pty Ltd v Australian Workers Union, NSW Branch (1990) 35 IR 100, Carver v Law Society of NSW (1998) 43 NSWLR 71, Dovade Pty Limited v Westpac Banking Group (1999) 46 NSWLR 168 , Gascor v Ellicott [1997] 1 VR 332 , Helljay Investments Pty Limited v Deputy Commissioner of Taxation (Cth) [1999] HCA 56, (1999) 74 ALJR 68 , In the Marriage of Murphy and Armstrong (1978) 35 FLR 482 , Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, Livesey v New South Wales Bar Association (1983) 151 CLR 288, Precision Fabrication Pty Ltd v Roadcon Pty Ltd (1991) 104 FLR 260, Professional Officers Association of New South Wales v New South Wales Teachers' Federation (1994) 54 IR 85 , R v Commonwealth Conciliation and Arbitration Commission, Ex parte Angliss Group (1969) 122 CLR 546 , R v Nicholas [2000] VSCA 49, R v Watson, Ex parte Armstrong (1976) 136 CLR 248 , Re JRL, Ex parte CJL (1986) 161 CLR 342 , Re Polites, Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, S & M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358, Vakauta v Kelly (1989) 167 CLR 568, Wentworth v Rogers (No. 13) (unreported, Court of Appeal, 13 March 1987), WorkCover Authority of New South Wales v Professional Contractors Pty Limited & Anor (unreported, Cahill VP, Matter Nos. CT95/1343 - 1348 20 September1996) HEARING DATES: 21/03/2000; 06/04/2000 DATE OF JUDGMENT: 04/28/2000

[63]

The principles concerning what has come to be called shortly, if not wholly accurately, the "appearance of bias" by judicial officers are well established; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78. What must be demonstrated to the requisite degree is the appearance of prejudgment, not simply that a particular outcome of the litigation is likely or unlikely. As Mason J said in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352: "It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248 and Livesey (1983) 151 CLR 288 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554; Watson (1976) 136 CLR 248 at 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 14; 32 ALR 47 at 50 - 51."

[71]

There is no rule that a judge who has previously appeared as counsel against a party who is now a litigant, or in peripheral litigation, should disqualify himself or herself merely on that account ( Precision Fabrication Pty Ltd v Roadcon Pty Ltd (1991) 104 FLR 260). However, if the judge has previously been briefed as counsel in the matter he or she should not sit ( Thellusson v Lord Rendlesham (1859) 7 HLC 429; 11 ER 172; Precision Fabrication Pty Ltd v Roadcon Pty Ltd (1991) 104 FLR 260 at 264). In particular, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal or court, the position is very different. The erstwhile legal adviser should not sit ( Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 at 88). The apprehension of bias is even stronger where the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests. The erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate ( Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 at 88). If a tribunal member or judge sits in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue ( Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 at 88). In determining whether there is an apprehension of bias, account must be taken of the nature of the relationship with the client, the ambit of the advice given and the issue falling for determination ( Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 at 88). For example, in Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 at 88 a deputy president of the Australian Industrial Relations Commission who had previously given advice on corporate restructuring that would allow reduction of staffing levels and wages and introduction of junior rates for employees in cinemas, disqualified himself from hearing later proceedings involving the employer when requested by the relevant union to do so. The High Court held he should not have disqualified himself. His advice had become irrelevant to the very different circumstances of the industry now, and had not included a recommendation for a future course of action but only a detailed available negotiating position ( Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 at 91). Clearly a difficult discretionary judgment was made by the three-member High Court bench as to whether in the circumstances of the case sufficient change had occurred over the period which had elapsed since the advice was given. The proceedings before the commission concerned events as they stood two years after the advice was given. However, the relationship of solicitor and client was a brief one, apparently consisting only of the letter of advice. As the judges said, much depends upon the nature of the relationship between the judge or tribunal member and the client, the ambit of the advice given and the issues falling for determination ( Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 at 88 per Brennan , Gaudron and McHugh JJ).

[73]

A judge should not sit to hear a case if in all circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it: Livesey v New South Wales Bar Association (supra) at 293-294.
A judge should not sit if he considers that there is any real possibility that his participation in the case might lead to a reasonable apprehension of pre-judgment or bias: Livesey at 294.
However, it would be an abdication of judicial function for a judge to automatically disqualify himself whenever he was requested to do so by one party on the grounds of apparent bias, regardless of the wishes of the other party to the suit: Livesey at 294; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272.
Commonly the types of cases which arise where there is an apprehension of bias, are cases where the judge has an interest in the result, or where the judge has indicated to the parties that he has already made up his mind on some issue in the case without giving the affected party a proper opportunity to submit his case, or where the judge is a friend or relative of one of the parties or of a material witness or where the judge occupies some other position in the case which is incompatible with his judicial function. A recent example of the last type of situation was considered by this Court in R v Cavit; Ex parte Rosenfield (1985) 73 FLR 385, where a Crown Prosecutor who was appointed an acting magistrate was held to be disbarred from hearing the summary prosecution of an accused person because of his position as a prosecutor. But these are all but instances of the general rule referred to in Livesey. Bias does not come in closed categories: Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530 at 549.
In determining whether a fair-minded person would entertain a reasonable apprehension of bias, that person is expected to know the objective facts and the legal history of the matter, but not to have any individual knowledge of the judge concerned: Fingleton v Christian Ivanoff Pty Ltd (supra) at 533, per Bray CJ; R v Cavit (supra) at 34.
It is common practice for a judge to disqualify himself where a former client of his, whilst at the bar, becomes a litigant in a matter to come before him: Lyle v Christian Ivanoff Pty Ltd (1977) 16 SASR 476 at 484, per Bright J. Likewise, a judge should not, in my opinion, hear a matter if he had previously been briefed as counsel in that matter: Thellusson v Lord Rendlesham (1859) 7 HLC 429; 11 ER 172, where Lord Chelsmford LC disqualified himself from taking part (although not from sitting) in the House of Lords on an appeal in which he had previously been briefed as counsel. However, merely being involved as counsel in peripheral litigation may not require a judge to disqualify himself: Thelluson (supra), where Lord St Leonards who had previously been briefed as counsel "in various branches of this cause on different occasions" did not disqualify himself, although, as Wells J observed in R v Moss; Ex parte Mancini (1982) 29 SASR 385 at 428, "the standards of reason and right conduct in public affairs have undergone a substantial - sometimes even a dramatic - metamorphosis" since then. There does not appear to be any rule of practice that a judge who has previously appeared as counsel against a party who has become a litigant in a matter to come before him should disqualify himself merely on that account.

Workcover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited

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Judgment (106 paragraphs)

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Cases Cited (36)