1
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Mining and Energy Union
v
LCR Group Pty Ltd
(C2016/2298)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ASBURY
COMMISSIONER SPENCER SYDNEY, 6 APRIL 2016
Appeal against decision [2016] FWC 37 of Senior Deputy President Richards at Brisbane on
4 January 2016 in matter number AG2015/3647.
Introduction
[1] On 19 January 2016 the Construction, Forestry, Mining and Energy Union (CFMEU)
applied for permission to appeal and appealed a decision of Senior Deputy President Richards
issued on 4 January 2016 (Decision).1 The Decision concerned a request by the CFMEU that
the Senior Deputy President recuse himself from determining an application by LCR Group
Pty Ltd (LCR Group) under s.210 of the Fair Work Act 2009 (FW Act) for approval of a
variation to the LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011 (Agreement).
After dismissing a number of the CFMEU’s objections to the agreement variation in a
separate decision2, the Senior Deputy President dismissed the recusal application and directed
the parties to file further submissions regarding the proposed variation.
[2] We heard the appeal on 10 February 2016 and gave an ex tempore decision. For
convenience we reproduce that decision here:
“[1] We have decided to grant permission to appeal, because we consider that the
circumstances of this case, which involved communications between a member of the
Commission and a party which were not disclosed at the time to another party which
had previously appeared in the proceedings, raises an important issue concerning the
practice and procedure of the Commission.
[2] However we are not satisfied that there was any error in the decision of the
Senior Deputy President the subject of the appeal not to recuse himself on the ground
that there was a reasonable apprehension of bias.
1 [2016] FWC 37
2 [2015] FWC 7311
[2016] FWCFB 916
REASONS FOR DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 916
2
[3] Accordingly the appeal is dismissed. We will provide full reasons for our
decision in due course.”
[3] We now give our reasons in accordance with paragraph [3] of the ex tempore decision.
Factual Background
[4] The events which led to the recusal application the subject of the Decision may be
summarised as follows. On 23 June 2015 LCR Group made an application to the Commission
for approval of the variation to the Agreement. The substance of the variation was to remove a
5% wage increase provided for in the Agreement. The CFMEU, which was covered by the
Agreement, opposed approval of the variation on the basis that the employees to whom the
Agreement applied had not genuinely agreed to the variation in accordance with the
requirements in ss.186(2) and 188(c) of the FW Act as applied to agreement variations by
s.211(1). It also contended that there were serious public interest grounds for the variation not
to be approved under s.211(1)(b). The CFMEU’s opposition to approval of the variation on
these grounds was fully articulated in a written submission which it filed on 14 July 2015.
The CFMEU did not advance any other grounds for the variation not to be approved at this
time.
[5] The Senior Deputy President conducted hearings in relation to the CFMEU’s grounds
of objection on 3 August, 1 September and 19 October 2015, and subsequently received
further written submissions from the parties. In the course of its closing submissions, the
CFMEU raised an additional point, namely that the variation could not be approved because
no notice of employee representational rights (NERR) had ever been issued in relation to it.
The Senior Deputy President then issued a decision on 10 November 2015.3 The conclusions
in that decision were as follows:
“[124] Having considered the evidence in relation to this application I am of the view
that the objections pressed by the CFMEU have not been made out and are dismissed.
[125] I will by separate decision deal with the further requirements of the application
for approval of the variation of the Agreement.”
[6] It is important to note that the decision of 10 November 2015 disposed of all
objections which the CFMEU had raised against the approval of the variation. There was no
appeal lodged against that decision. Therefore what remained was for the Senior Deputy
President to determine whether the FW Act’s requirements for approval of the variation were
satisfied in circumstances where there was, at that time, no remaining dispute between LCR
Group and the CFMEU about that issue.
[7] Shortly after this, there were ex parte communications with the legal representative
(Ms Shae McCartney) of LCR Group, disclosed by the Senior Deputy President in the
Decision in the following terms:
“[12] In respect of the claim that I should recuse myself for reasons of an improper
communication with the legal representative of the Applicant, I disclosed on request of
3 [2015] FWC 7311
[2016] FWCFB 916
3
the CFMEU the totality of my interactions with the legal representative for LCR in the
following terms:
“In order to expedite the further considerations in relation to the approval of the
Agreement variation upon the CFMEU objections having been dismissed, the
Senior Deputy President spoke directly with Ms McCartney by telephone on or
about 16 November 2015 and advised that consideration should be given to the
agreement signature requirements stipulated in the Full Bench decision in
Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia and another v Sustaining
Works Pty Limited [2015] FWCFB 4422. At that time the Senior Deputy
President advised that any changes would need to be copied to the CFMEU.
On or about 19 November chambers received a voice message from a
colleague of Ms McCartney, asking whether, if the Applicant sought to amend
the application (amend the signature page), such an application to amend
needed to be ‘formal’/on a specific form or would a letter or similar be
sufficient. A brief response to this query, as well as a copy of the signature
page approved by the Full Bench in the above decision was directed to Ms
McCartney from chambers on 20 November 2015.
A copy of that email, which again noted that if any amendment was sought it
must be copied to the CFMEU, is attached.”
Ms McCartney’s response was received on 26 November, and was copied to
the CFMEU for its consideration as required.
There have been no other communications with the representative of LCR
[…]”
[13] The email response referred to above (and as has been provided to the CFMEU)
included the following words (from my Associate):
“Dear Ms McCartney
I refer to a message from Claire Duffield yesterday afternoon – if the employer
seeks to amend the signature page/s, an explanatory ‘cover letter’
accompanying the amended page/s will be sufficient. The
document/correspondence should be copied to the CFMEU at the time of filing
with the Commission.
Also for reference, attached is an amended signature page, received by a recent
Full Bench where the initial signature page was found to be not in accordance
with the Regulations.
Kind regards […]”
http://www.austlii.edu.au/au/cases/cth/FWCFB/2015/4422.html
[2016] FWCFB 916
4
[8] It should be noted that in the Full Bench decision referred to in paragraph [12] of the
extract above (Sustaining Works4), it was determined that a failure to comply with the
requirements concerning the signing of enterprise agreements in reg.2.06A of the Fair Work
Regulations 2009 (FW Regulations), unless remedied by an amendment, meant that the
agreement could not be approved by virtue of ss.185(2)(a) and 186(1) of the FW Act. In that
case the applicant was permitted to rectify the problem by filing a re-signed copy of the
relevant agreement,5 and once the Full Bench was satisfied that this had been done it
confirmed the decision to approve the agreement.6 An equivalent requirement applicable to
the approval of variations to enterprise agreements is contained in ss.210(2)(a) and 211(1)(a)
of the FW Act and reg.2.09A of the FW Regulations.
[9] On 26 November 2015 LCR Group sent to the Commission an amended signature
page for the variation to the Agreement together with a submission in which it was sought that
the amendment be allowed under s.586 of the FW Act or alternatively that any irregularity in
the variation be waived. This was copied to the CFMEU. The receipt of these documents by
the CFMEU caused it to make inquiries of the chambers of the Senior Deputy President as to
any communications that had occurred with LCR Group or its representatives. It was as a
result of this inquiry that the ex parte communications with Ms McCartney were disclosed to
the CFMEU by the Senior Deputy President’s Associate in an email dated 27 November
2015. In that email the CFMEU was also invited to provide any further submissions in
relation to the approval of the variation it wished to make by 2 December 2015.
[10] In an email dated 2 December 2015 and addressed to the Associate to the Senior
Deputy President, the CFMEU raised the issue of the ex parte communications and also raised
an allegation that the General Manager of LCR Group, Mr Len Gillespie, had when attending
the previous hearing before the Senior Deputy President claimed to have a personal
association with him. The email stated: “In the light of the above, including the Gillespie
claims, it may be necessary for his Honour to give consideration to recusing himself from this
matter to avoid any potential for a reasonable apprehension of bias”. In a reply email sent the
same day, the Senior Deputy President’s Associate stated that the Senior Deputy President
had no recollection of any acquaintance with Mr Gillespie and did not intend to recuse
himself from the matter.
[11] Some further correspondence ensued. The CFMEU ultimately pressed its application
that the Senior Deputy President recuse himself on the basis of a reasonable apprehension of
bias. Directions were made for the filing of the parties’ materials in relation to this
application, and pursuant to these both the CFMEU and LCR Group filed written
submissions.
[12] As earlier stated the Senior Deputy President issued the Decision, in which he declined
to recuse himself, on 4 January 2016. The CFMEU lodged its notice of appeal against the
Decision on 19 January 2016. On the same day it lodged an outline of submissions in respect
of the variation approval application before the Senior Deputy President in which it
contended, on the basis of Sustaining Works, that the failure by LCR Group to comply with
the signature requirements of reg.2.09A meant that the variation could not be approved and
that leave to amend under s.586 should not be granted.
4 [2015] FWCFB 4422
5 Ibid at [30]-[33]
6 See PR571527
http://www.austlii.edu.au/au/cases/cth/FWCFB/2015/4422.html
[2016] FWCFB 916
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The Decision
[13] Insofar as the CFMEU’s recusal application was founded on the ex parte
communications, the Senior Deputy President’s conclusions in the Decision were as follows:
“[14] The Commission will ordinarily bring to the attention of an applicant in relation
to the approval of an agreement (be it an employer or a union) where it has potential
concerns about a procedural or technical requirement such as the satisfaction of the
signature requirements required under the regulations for an agreement, the absence of
requisite forms, or incomplete documentation, or where applications and declarations
are incomplete or missing.
[15] The Commission will do so where an applicant is not itself cognisant of the
omission or deficiency, and with the intention of enabling an applicant to rectify a
procedural omission or technical defect of a relevant kind prior to formal
consideration. The Commission does not knowingly allow agreement applications, or
other applications, to fail for reason of procedural omissions or technical deficiencies.
The Commission conducts itself so not solely in relation to agreement approval
applications but also in respect of all manner of other applications made under the Act;
it does so to assist the parties in their engagement in the jurisdiction and to ensure
delay is not incurred by technical omissions.
[16] In the current case, for example, the approval signatures included an abbreviated
given name (“Rick” instead of “Richard”), which on the authority of the Full Bench
in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia; Australian Manufacturing Workers' Union v
Sustaining Works Pty Limited [2015] FWCFB 4422 may not meet the requirements of
Regulation 2.06A(2) of the Fair Work Regulations 2009 (see PN 29-30).
[17] The applicant in this case filed an amended signature block (inclusive of the
varied agreement in its totality) and copied the same to the CFMEU. The CFMEU was
thereafter provided a period of time in which to make any further submission it wished
to make in regards to the amended application for variation of the relevant agreement.
Conclusion in relation to ex parte communications
[18] Upon consideration of the authorities in the field as were put to me in relation to
apprehended bias, and the circumstances in which a member of the court might
interact in private with a party in adversarial litigation, it is not evident to me that the
CFMEU, irrespective of its status in these proceedings, in any material manner has
been denied procedural fairness, or that a fair minded observer considering the
conduct of the Commission as disclosed in the particular context would form a view
the Commission would not impartially assess the outstanding largely procedural issues
in relation to the agreement approval process.”
[2016] FWCFB 916
6
[14] The Senior Deputy President also rejected the recusal application insofar as it was
based on the alleged association with Mr Gillespie on the basis that he had no recollection of
any such association and that Mr Gillespie was unknown to him.7
Grounds of appeal and submissions
[15] The CFMEU’s appeal against the Decision only challenged that aspect of it which
related to the ex parte communications. Its grounds of appeal were that the Senior Deputy
President erred:
(1) in holding that the subject matter of the ex parte communications was a
procedural or technical requirement, rather than an element of the substantive
matter for determination (ground 1);
(2) in holding that the ex parte communications would not give rise to a reasonable
apprehension of bias in a fair minded lay observer (ground 2); and
(3) in failing to recuse himself from the matter in circumstances where he had ex
parte communications with LCR Group about whether the mandatory pre-
approval steps had been satisfied, whether the identified defect could be
corrected pursuant to s.586 and whether the Commission should exercise the
discretion conferred by s.586 to allow the application to be amended (ground
3).
[16] The CFMEU submitted that permission to appeal should be granted in the public
interest because the appeal raised the important issue of the Commission acting, and being
seen to act, free from bias and an issue of principle regarding when members of the
Commission should recuse themselves due to a reasonable apprehension of bias. The CFMEU
also submitted that the appeal would enable the Full Bench to clarify the circumstances (if
any) in which it was appropriate for a member of the Commission to communicate with a
party to a contested enterprise approval application on an ex parte basis.
[17] The CFMEU referred to the High Court decisions in Re J.R.L. ex parte C.J.L8 and
Webb v The Queen9 as establishing a general rule that any ex parte communication with a
party about a substantive matter in dispute will give rise to a reasonable apprehension of bias.
In relation to its first ground of appeal, the CFMEU submitted that the Senior Deputy
President’s characterisation of the ex parte communications as merely involving a technical or
procedural matter was wrong, since it in fact involved a substantive matter affecting the
Commission’s capacity to approve the variation. In relation to the second ground, the
CFMEU submitted that the reasonable observer would infer that the Senior Deputy
President’s failure to disclose the ex parte communications was designed to keep them
private, and would also infer from his waiver of any requirement to make a formal
amendment application and his provision of the signature page from the Sustaining Works
decision that the provision of a new signature page in equivalent form would be sufficient to
address the Senior Deputy President’s concerns. These matters, taken together, would lead a
reasonable and fair minded lay observer to consider that the Senior Deputy President might
7 Decision at [19]-[22]
8 (1986) 161 CLR 342
9 (1994) 181 CLR 41
[2016] FWCFB 916
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not bring an impartial mind to the determination of a substantive issue. This would be further
compounded by the inference that would be drawn by the reasonable observer that had the
CFMEU not made the inquiry which it did concerning whether there had been any ex parte
communications with LCR Group, those communications would never have been disclosed.
In relation to the third ground of appeal, the CFMEU submitted that in the circumstances
described the Senior Deputy President erred in failing to recuse himself from any further
involvement in the matter.
[18] LCR Group submitted in relation to the first ground of appeal that the CFMEU’s
submissions were based on a flawed premise as to the “subject matter” of the communication,
which was a straightforward invitation to consider a particular matter, did not deal with any
matter of substance, and was no more than a procedural direction to consider and attend to a
technical matter arising in the proceedings. LCR Group further submitted that the process of
approving a variation was not an adversarial one such as to make the procedural course
adopted by the Senior Deputy President other than appropriate, and indeed the approach taken
by him was consistent with the requirements in s.577 as to how the Commission should
exercise its functions. The CFMEU had no right to be heard in relation to the matter, but in
any event the Senior Deputy President had made it clear that the CFMEU would be afforded a
hearing in relation to the signature issue. In relation to the second ground, LCR Group
submitted that the CFMEU did not establish how the ex parte communications gave rise to a
reasonable apprehension of bias and instead simply asserted that the mere fact of the ex parte
communications satisfied the two-step test for apprehended bias. In relation to the third
ground, LCR Group submitted that the ex parte communications did not involve the
expression of any view about whether the mandatory pre-approval steps had been satisfied,
whether any defect could be corrected pursuant to s.586, or whether the Commission should
exercise its discretion under s.586 to allow an amendment. In these circumstances the Senior
Deputy President was correct not to recuse himself. LCR Group submitted that because there
was no arguable case of error or any public interest ground attaching to the appeal, permission
to appeal should be refused.
Consideration
[19] We determined to grant permission to appeal in this matter because we considered that
it raised important issues about the practice and procedure of the Commission concerning
communications with parties in relation to extant proceedings.
[20] Section 577 of the FW Act establishes fundamental requirements concerning the
manner in which the Commission performs its functions and exercises its powers. It provides:
577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
[2016] FWCFB 916
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[21] The requirement in paragraph (b) of s.577 for speed, informality and avoidance of
technicality has led the Commission to adopt practices concerning communications between
parties and the chambers of members which are more flexible than those which are usually
applied by courts. This has extended to toleration in some cases of parties communicating
directly with the chambers of members concerning substantive as well as procedural matters.
However the requirements in paragraph (a) for fairness and justice and paragraph (c) for
openness and transparency has meant that the irreducible minimum for such communications,
when made in writing (as they usually should be), is that the correspondence must be copied
to other persons participating in the proceedings or whose interests might be affected unless
there is some special confidentiality requirement which needs to be accommodated. Where
the communication is made by telephone, usually for reasons of urgency, the party initiating
the communication should ensure that other interested persons are advised about it -
preferably in advance, but at the very least as soon as possible after the communication has
occurred.
[22] We consider that the same principles apply when the communication is initiated from
the chambers of a member. Any written communication should be copied to the other persons
participating in the proceedings or whose interests may be affected, unless there is a special
confidentiality issue. On the rare and usually very urgent occasions when a member finds it
necessary to initiate a telephone conversation with a party or the party’s representative, the
member will either arrange for other parties to be informed by his or her chambers or request
that the recipient of the communication undertake that task.
[23] In some matters before the Commission there may not be any “parties” other than the
person applying to the Commission to exercise its powers and it may be difficult to assess
which persons’ interests may be affected in such a way as to give them a legitimate
expectation that they will be kept advised in relation to the matter. This is an issue which has
arisen particularly in relation to the Commission’s function of approving enterprise
agreements, where the extent to which relevant unions which are not bargaining agents have a
right to be heard has proved contentious.10
[24] In the matter before the Senior Deputy President, however, it was clear that the
CFMEU had a legitimate right to be informed of any substantive development in relation to
the variation approval application for two reasons. First, it was covered by the Agreement
under s.183, and would continue to be covered by the Agreement as varied if the variation
was approved. Second, it opposed the variation being approved and had participated in a
previous contested hearing concerning the grounds of its opposition without apparent
objection from LCR Group.
[25] In the Decision, the relevant part of which we have earlier quoted, the Senior Deputy
President stated that the Commission would ordinarily identify to an applicant for approval of
an enterprise agreement or a variation to an enterprise agreement any concern it has about
non-compliance with a procedural or technical requirement, particularly where the applicant
is not cognisant of the deficiency. That was undoubtedly a correct statement. However the
communication of any such concerns would usually be done at a recorded hearing which
other persons with a legitimate interest have an opportunity to attend, or in writing through a
10 See e.g. CFMEU v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940 at [48]-[76]; CEPU v Main People Pty
Ltd [2014] FWCFB 8429 at [5]-[7]
[2016] FWCFB 916
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formal statement or by way of correspondence a copy of which is provided to all interested
persons identifiable at the relevant time.
[26] In this case the Senior Deputy President took a different course. The mode of
communication he initially adopted was by a personal telephone call from himself to LCR
Group’s legal representative. As earlier stated, this would usually only be done in a rare and
urgent case. We could not identify any urgent or other exceptional circumstances in this case
which required this course to be taken. Having adopted this course, the Senior Deputy
President did not then take steps to ensure that the CFMEU was informed of the telephone
call, either by his chambers or by LCR Group’s legal representative. Nor was the subsequent
email of 20 November 2015 immediately copied to the CFMEU. Disclosure only occurred
later in answer to an inquiry made by the CFMEU.
[27] It is arguable that this course of action did not satisfy the requirement in s.577(c) for
the Commission to be open and transparent in the performance of its functions and the
exercise of its powers. Further, it had the unintended consequence that, because of the
CFMEU’s recusal application which followed and this appeal, there was a delay of some
months in the final approval of the variation to the Agreement.11 This illustrates that irregular
procedural steps intended to save time may have the opposite effect.
[28] However, the question that was before us was whether the ex parte communications
between the Senior Deputy President and LCR Group’s legal representative gave rise to a
reasonable apprehension of bias such as to require the Senior Deputy President to recuse
himself from further dealing with the variation approval application.
[29] The general principles relating to disqualification for apprehended bias were usefully
summarised by the Federal Court (Middleton J) in Kirby v Centro Properties Limited (No
2),12 and are, to the extent relevant to this case, as follows:
“[9] The apprehension of bias principle is stated in Ebner v The Official Trustee in
Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] where Gleeson CJ, McHugh,
Gummow and Hayne JJ said (subject to qualifications relating to waiver and
necessity):
... a judge is disqualified if a fair-minded lay observer might reasonably
apprehend that the judge might not bring an impartial mind to the resolution of
the question the judge is required to decide.
[10] The question is one of possibility (real and not remote), not probability. If there is
an appropriate apprehension of bias, then the judge must disqualify himself or herself,
no matter what case management considerations arise in the efficient and effective
determination of a proceeding.
[11] In Ebner, the majority in the High Court affirmed that the application of this test
involves two steps. First, there must be identification of what it is that might lead a
judge to decide the particular questions before him or her other than on the merits.
Second, having identified the factors or circumstances that might influence a departure
11 The variation was approved on 15 March 2016: [2016] FWCA 1633
12 (2011) 202 FCR 439
[2016] FWCFB 916
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from meritorious decision-making, it is “no less important” to articulate the “logical
connection” between those factors and the fear that the judge might not apply proper
judicial method (that is, merits based decision-making) in resolving the controversy on
the facts and the law (at [8]).
...
[15] These principles must be carefully applied. It has been said that: “...
disqualification flows from a reasonable apprehension that the judge might not decide
the case impartially, rather than that he will decide the case adversely to a party”:
Cabcharge at [32]; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352
(Mason J).
[16] Needless to say, disqualification of a judge by reason of prejudgment must be
“firmly established”: Cabcharge at [25]; Re JRL at 352. Judges should not accede too
readily to recusal by reason of apprehended bias.
...
[23] However, as I have indicated, applying these principles will be a matter of
judgment and evaluation in the circumstances. The application of these principles to
particular facts in earlier authorities, concerning as they do, the particular
circumstances that may or may not have lead a judge to be disqualified, are not to be
elevated to the “principles” to be applied. Nor is the application of the principles in
any given case to be used as a gloss upon those principles. As the authorities
demonstrate, including Laurie, the principles are relatively well established, but in the
application of these principles reasonable minds may differ as to the result.”
[30] The circumstances in which ex parte communications between a party to proceedings
and a judge or a tribunal member might give rise to a reasonable apprehension of bias were
discussed by the Federal Court Full Court in John Holland Rail Pty Ltd v Comcare13 as
follows:
“[11] As initially propounded before us, John Holland’s argument apparently assumed
(contrary to the analysis in relevant authorities) the existence of a general rule that any
unilateral communication by a party with a judge’s chambers is a serious impropriety
the acquiescence in which, by an associate, could give rise to a reasonable
apprehension of bias in the judge.
[12] The rule is that a judge should not receive any communication from anyone
concerning a case that the judge is to decide, made with a view to influencing the
conduct or outcome of the case. See, for example, Re JRL; Ex parte CJL [1986] HCA
39; (1986) 161 CLR 342 (“Re JRL”) at 346 (Gibbs CJ) and 350 (Mason J), both
citing Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322 at 337
and Reg. v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127.
In this context, communications made by one party without the knowledge of the other
are governed by the principle that a judge should disqualify himself from hearing a
matter where a fair-minded lay observer might reasonably apprehend that the judge
might not bring an impartial mind to the resolution of the issues in the case: Ebner v
Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (“Ebner”) at
344; British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR
13 [2011] FCAFC 34; 276 ALR 221
[2016] FWCFB 916
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429; [2011] HCA 2 (“British American v Laurie”) at 464-5, [139]-[140]; Re JRL at
351. This is the apprehension of bias principle.
[13] In the course of argument, counsel for John Holland qualified the above
submission, contending that a unilateral communication between a party
(or practitioner) and judge’s chambers would give rise to a reasonable apprehension of
bias, unless it were established by affidavit evidence (or, presumably, a similarly high
degree of proof) that the unilateral communication related solely to procedural or
practical matters. We return to this submission hereafter.
...
[22] As already stated, the authorities do not support the proposition that there is any
necessary impropriety if a party or practitioner communicates unilaterally with a
judge’s chambers. Whether or not such a communication is improper depends on all
the circumstances, including, principally, its nature, subject matter, and perhaps, its
sequence and extent. There is no impropriety in a party’s unilateral communication
with chambers in relation to procedural, administrative or practical matters, although a
sustained sequence of communications not circulated to the other parties, even in
relation to matters of this kind, could, at a certain point, become unprofessional or
improper in the absence of some good reason: see, for example, Carbotech-Australia
Pty Ltd v Yates [2008] NSWSC 540.
[23] On the other hand, save in the unusual circumstances warranting an ex
parte application, it is clearly improper for parties or their practitioners to attempt to
communicate unilaterally with a judge’s chambers in relation to the substantive issues
in the litigation. Every communication of this kind must be circulated to, or made in
the presence of, the other parties (unless the other parties have previously consented to
its unilateral communication to the judge: see Fisher at 352). Breach of that principle
is not only an impropriety on the part of the party making the communication but may,
in certain circumstances, found, or be a factor contributing to, a reasonable
apprehension of bias, alternatively, lack of procedural fairness, on the part of the
judge. It does not follow from this, however, that the mere making of a unilateral
communication raises a presumption of impropriety (as John Holland’s argument
assumed), thereby casting on the parties involved (including the practitioner, chambers
staff who received or engaged in the communication and, in some cases, the judge) an
onus to prove the contrary by means of affidavit or a similar level of proof. In the
present case, moreover, the mere fact that Comcare’s solicitor declined to make an
affidavit setting out his conversation with the judge’s associate could not make out a
case for apprehended bias that did not otherwise arise.”
[31] Although John Holland concerned a unilateral communication initiated by a party
with a judge’s chambers and not the opposite situation here where the communication was
initiated by the tribunal member, we nevertheless considered that the principle stated in John
Holland was applicable. We therefore approached the issue on the basis that an ex parte
communication, even about a substantive issue, would not automatically constitute a basis for
a reasonable apprehension of bias, but it might do depending on the circumstances of the
particular case. The two-step test in Ebner remained to be satisfied.
[32] While the simple fact of the ex parte communications might have been sufficient to
satisfy the first step of the test, we did not consider, in relation to the second step, a fair-
minded observer might perceive a logical connection between those communications and the
[2016] FWCFB 916
12
possibility that the Senior Deputy President might not bring an impartial mind to the issue.
We reached that conclusion for four reasons arising from the context and content of the
communications:
(1) The Senior Deputy President had, at the time of the ex parte communications,
wholly determined all the grounds of objection to the approval of the variation
raised by the CFMEU. There had been no appeal from his decision in that
respect. The CFMEU had not agitated any issue concerning the execution of
the variation to the Agreement, despite it apparently having access to the
application and constructive knowledge of Sustaining Works. Therefore,
whether the subject matter of the ex parte communications was to be
characterised as merely procedural or substantive in nature, those
communications did not concern an issue then in contest between the parties.
To that extent, no perception of partiality might reasonably arise.
(2) At no stage did the Senior Deputy President say anything to the effect that he
would decide the signature issue, including any attempt to rectify the problem
by way of an amendment, in a particular way. Nor did we consider that an
implication to that effect might reasonably be drawn from what was said.
(3) The Senior Deputy President made it clear in the course of the communications
with LCR Group’s legal representative that any application to amend in order
to rectify the perceived signature problem would have to be copied to the
CFMEU. That obviously implies that the Senior Deputy President intended to
provide the CFMEU an opportunity to be heard in relation to the issue. Thus
nothing was conveyed which might reasonably suggest that the signature issue
would be resolved in other than an open process.
(4) The revised signature page which the Senior Deputy President sent to LCR
Group’s legal representative could not be taken as expressive of his personal
view as to what was necessary to resolve the problem, since there is no dispute
that it reproduced what was done to satisfy the Full Bench in Sustaining Works.
We did not consider that identification to a party of an approach or a
proposition supported by the relevant Full Bench authority might reasonably be
perceived as demonstrative of any impartiality.
[33] Consequently we concluded that the Senior Deputy President was correct not to recuse
himself, and accordingly we dismissed the appeal.
VICE PRESIDENT
OF THE FAIR WORK MISSION THE
[2016] FWCFB 916
13
Appearances:
C. Massy of counsel with L. Tiley solicitor for the Construction, Forestry, Mining and Energy
Union.
Y. Shariff of counsel with M. Demarco and S. McCartney solicitors for LCR Group Pty Ltd.
Hearing details:
2016.
Brisbane:
10 February.
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