1
Fair Work Act 2009
s.604 - Appeal of decisions
Reliable Petroleum Pty Ltd
v
Mr Fraser Murray
(C2017/4410)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 12 SEPTEMBER 2017
Appeal against decision [2017] FWC 3552 of Commissioner Hampton at Adelaide on 20 July
2017 in matter number U2017/1796; request for recusal on the ground of apprehended bias;
request refused
[1] Reliable Petroleum Pty Ltd (Reliable Petroleum) has lodged an appeal, for which
permission is required, under s.604 of the Fair Work Act 2009 (Act). The appeal is against a
decision1 and order2 of Commissioner Hampton made on 20 July 2017. In its notice of appeal
Reliable Petroleum sought an order staying the whole of the decision and order pending the
hearing and determination of the appeal. I heard the application for the stay order on 15
August 2017 and, on 16 August 2017 I issued a decision3 dismissing the application for a stay
order (stay decision).
[2] By correspondence to my chambers dated 28 August 2017, Reliable Petroleum
requests that I recuse myself from presiding over a Full Bench which is scheduled to hear the
application for permission to appeal, and if permission is granted, to hear the appeal on 21
September 2017 (recusal application). The ground on which the request is made is said to be
“ostensible and/or apprehended” bias. I had proposed to list the recusal application for
hearing, but as events transpired, Reliable Petroleum did not wish to be heard beyond the
matters raised in its 28 August 2017 correspondence, and, as Mr Murray Fraser, the
respondent to the appeal (or more properly the respondent’s representative) was content to be
heard on the basis of short written submissions which were filed and served on 4 September
2017, the recusal application fell to me to determine on the papers.
[3] The apprehended bias is said to arise from that which appears at [5] of the stay
decision which is in the following terms:
“I am not persuaded that Reliable Petroleum has made out an arguable case that has some
reasonable prospect of success, in respect of both the question of permission to appeal and the
substantive merits of the appeal, having regard to the additional hurdle in unfair dismissal
1 [2017] FWC 3552
2 PR594531
3 [2017] FWC 4244
[2017] FWC 4704
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/awardsandorders/html/PR594531.htm
http://www.fwc.gov.au/decisionssigned/html/2017fwc3552.htm
[2017] FWC 4704
2
related appeals set out in s.400 of the Act. This assessment is necessarily carried out without
the benefit of hearing Reliable Petroleum’s full argument and without the opportunity to
undertake a thorough analysis of the case material.”4
[4] Reliable Petroleum submits that the paragraph reproduced above:
1. raise matters which were not put to counsel for either party during the course
of the stay argument and not debated in arguendo before the Decision was
published;
2. express a conclusion that was not necessary to support the decline of the stay
sought by the Appellant;
3. go directly to the essence of both the permission and substantive question that
the Full Bench will be asked to decide at the hearing of the appeal and express
an opinion which is clearly adverse to the prospects of the Appellant;
4. are not qualified by an express statement that they are preliminary views; and
5. on one reading, suggest that the position of the Deputy President is already
sufficiently clear, even before a thorough analysis of all of the Appellant’s
material, that the Application for Leave to Appeal and the Appeal itself have
limited prospects.5
[5] Reliable Petroleum contends that given each of the matters above, the conclusion
expressed at [5] of the stay decision would cause a reasonable and fair-minded observer to
hold genuine concern as to the decision maker’s ability to bring an impartial mind, to the
hearing of this matter.
[6] Reliable Petroleum says that it is “particularly concerned that conclusions in those
terms have been expressed by a presiding member in the Commission, without first giving our
client the opportunity to respond to them or to raise this objection during the course of the
hearing. There has, in our respectful submission, been a real (albeit inadvertent) failure to
afford our client procedural fairness and natural justice.”6 As a result, it submits “that the
concerns raised in this letter are not curable by an assurance given now, or subsequently, that
the matters expressed in the stay decision are in the nature of a preliminary view only.”7
[7] Before turning to a consideration of the submissions, let me briefly set out the relevant
principles which arise. The principles relating to disqualification for apprehended bias,
particularly as they relate to a situation where a judicial officer or tribunal member has
previously made a finding or stated an opinion about a particular issue, were usefully
summarised by Middleton J in Kirby v Centro Properties Limited (No 2)8 as follows:
4 Ibid
5 Letter from Appellant’s Representative to chambers (Letter to chambers), dated 28 August 2017
6 Ibid
7 Ibid
8 (2011) 202 FCR 439
[2017] FWC 4704
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“The principles respecting disqualification for apprehended bias represent a balance between
two competing policy considerations, namely the maintenance of public confidence in the
judicial system, by ensuring that the public perceive that cases are decided only by reference to
the evidence before the court, and the need for judges to discharge their duties unless good
reason is shown.
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.”
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.
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 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]).
The mere fact that a judge has made a particular finding on a previous occasion does not
necessarily give rise to an apprehension of bias. Nevertheless, in some situations previous
findings may lead to disqualification and “what kind of findings will lead to relevant
apprehension of bias must depend upon their significance and nature”: Gascor v Ellicott
[1997] 1 VR 332 at 348 (Ormiston JA); see also at 342 (Tadgell JA with whom Brooking JA
agreed); and see Cabcharge 5 at [34].
However, as the majority observed in British American Tobacco Australia Services Ltd v
Laurie [2011] HCA 2; (2011) 242 CLR 283, the lay observer is the “yardstick”, and in this
regard:
“... the lay observer might reasonably apprehend that a judge who has found a state of
affairs to exist, or who has come to a clear view about the credit of a witness, may not
be inclined to depart from that view in a subsequent case. It is a recognition of human
nature” (at [139]). (Emphasis in original.)
The application of these principles does not change merely because a judge expressly
acknowledges at the hearing of the first proceeding that different evidence may be led in the
later proceeding, casting new light on the facts he or her had found in the previous proceeding.
This is assumed to occur in any event. Such an acknowledgment does not necessarily remove
the impression created by reading the earlier judgment that the views there stated might
influence the determination of the same issue in a later judgment: see Laurie at [145] per
Heydon, Kiefel and Bell JJ. [Emphasis in reported judgement]
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).
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwc4007.htm#P54_6464
[2017] FWC 4704
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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.
To apply these principles in any given case is a matter of judgment and evaluation depending
on the exact circumstances. Undoubtedly, the question of an apprehension of bias requires one
to focus on the issues that the judge is called upon to decide - see eg British American Tobacco
Australia Ltd v Gordon (2007) NSWSC 109 at [97] per Brereton J. No strict approach should
be taken in identifying the legal and factual issues. The issues before a judge sought to be
disqualified may well be different in some respects to those issues determined in the earlier
proceeding. At the core of the inquiry is an examination of the legal and factual issues on foot
and the extent to which previous findings may, in the eyes of the fair-minded lay observer,
impact on the judge’s ability to decide the matter other than on its merits.
Because the test of apprehended bias involves “a fair-minded lay observer” who is observing a
judge, the assumed characteristics of each need to be considered.
A judge is trained and is required “to discard the irrelevant, the immaterial and the
prejudicial”: see Vakauta v Kelly (1988) 13 NSWLR 502 at 527 (McHugh JA), adopted in
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585 (Toohey J); Johnson v
Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12] (Gleeson CJ, Gaudron, McHugh,
Gummow and Hayne JJ); and Laurie at [80] (Gummow J); and at [140] (Heydon, Kiefel and
Bell JJ).
As to the “reasonable observer”, in Laurie at [145], Heydon, Kiefel and Bell JJ affirmed that a
reasonable observer would note the possibility of the evidentiary position changing between
the previous proceeding and the subsequent proceeding.
In R v Burrell (2007) 175 A Crim R 21; [2007] NSWCCA 79 at [11], McClellan CJ at CL
(with whom the other members of the New South Wales Court of Criminal Appeal agreed)
stated that:
“The ordinary fair minded person understands that in the exercise of the judicial
function it will be necessary, from time to time, for a judge to reconsider matters
which have previously been considered or which may have been pronounced upon by
that particular judge.”
In Sengupta v Holmes [2002] TLR 351, at [35]-[37], Laws LJ (Jonathan Parker LJ agreeing)
stated that the fair-minded observer would recognise that a professional judge would be
capable of departing from an earlier expressed opinion.
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.”9
[8] An aspect of the principles summarised above requires some elaboration in light of the
submissions advanced by Reliable Petroleum. It is not sufficient, simply that the judicial
9 Ibid at 441 – 443, [8]-[23]
[2017] FWC 4704
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officer or tribunal member may be called on to determine an issue about which an opinion has
already been expressed. There must be a further element, namely that in considering the issue
about which an opinion has earlier been expressed, there is a real possibility that in doing so
the judicial officer or tribunal member will merely adhere to the earlier expression of opinion
without giving fair consideration to the evidence and arguments advanced that might support
a different conclusion; or in this case, to the material in the Appeal Book and the arguments to
be advanced by Reliable Petroleum in support of its application for permission to appeal, and
if given, in support of its appeal. This was explained in by Hayne J in Minister for
Immigration v Jia Legeng10 as follows:
“Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that
there is a real likelihood that a reasonable observer might reach that conclusion, is to make a
statement which has several distinct elements at its roots. First, there is the contention that the
decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case.
Secondly, there is the contention that the decision-maker will apply that opinion to that matter
in issue. Thirdly, there is the contention that the decision-maker will do so without giving the
matter fresh consideration in the light of whatever may be the facts and arguments relevant to
the particular case. Most importantly, there is the assumption that the question which is said to
have been prejudged is one which should be considered afresh in relation to the particular
case.
Often enough, allegations of actual bias through prejudgment have been held to fail at the
third of the steps I have identified. In 1894, it was said that:
“preconceived opinions - though it is unfortunate that a judge should have any - do not
constitute such a bias, nor even the expression of such opinions, for it does not follow
that the evidence will be disregarded.” (Emphasis added)
Allegations of apprehended bias through prejudgment are often dealt with similarly.”11
[Footnotes omitted]
[9] The submissions of Reliable Petroleum in substance involve the proposition that only
the first two of the three elements identified by Hayne J are necessary to be made out in order
to establish a reasonable apprehension of bias. The substance of that submission cannot be
accepted. As was stated by Gaudron and McHugh JJ in Laws v Australian Broadcasting
Tribunal12:
“A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring
an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about
an issue involved in the inquiry ... When suspected prejudgment of an issue is relied upon to
ground the disqualification of a decision-maker, what must be firmly established is a
reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion
already formed that he or she will not alter that conclusion irrespective of the evidence or
arguments presented to him or her.”13
[10] Turning then to the matters advanced by Reliable Petroleum. First, Reliable Petroleum
submits that the reasons at [5] of the stay decision “raise matters which were not put to
10 (2001) 205 CLR 507
11 Ibid at 564, [185]-[186]
12 (1990) 170 CLR 70
13 Ibid at 100
[2017] FWC 4704
6
counsel for either party during the course of the stay argument and not debated in arguendo”
before the stay decision was published.14 Although not expressly stated, I am assuming that
the issue to which reference is made is the reference at [5] of the stay decision to the
“additional hurdle in unfair dismissal related appeals set out in s.400 of the Act.”15
[11] Counsel for Reliable Petroleum opened her submissions in support of the stay order
application by submitting that:
“my client needs to satisfy the commission that, firstly, that there is an arguable case I think
some reasonable prospects of success on both the substantive appeal and on the permission
application, and then satisfy the tribunal that the balance of convenience favours my client.”16
[12] The suggestion that the effect of s.400 on the operation of permission to appeal from
an unfair dismissal related decision, the merits of such an appeal, and relevantly, on the
question whether there has been established (at an interlocutory hearing seeking a stay order)
an arguable case with some reasonable prospect of success on the question of permission to
appeal, needed to be drawn to the attention of a lawyer, much less one who is experienced in
this jurisdiction, is not sustainable. The task that faced counsel for Reliable Petroleum was,
inter alia, to persuade me that there was an arguable case with some reasonable prospect of
success on the question of permission to appeal. This necessarily involved a consideration of
s.400. Put another way, counsel needed to persuade me that there was an arguable case with
some reasonable prospect of success that permission to appeal would be granted because it is
in the public interest to do so.
[13] It was not unreasonable for me to assume that when counsel for Reliable Petroleum
correctly set out the task before her, she understood that so much of the task as required
establishing an arguable case with some reasonable prospect of success in respect of the
question of permission to appeal, necessarily included establishing an arguable case with
some reasonable prospect of success that s.400(1) will be satisfied. An express reference to
s.400 during the hearing of the stay application was neither necessary, nor did it amount to a
denial of procedural fairness in circumstances where satisfaction as to an arguable case with
some reasonable prospect of success about the state of affairs in s.400(1) of the Act was a
necessary element that was required to be established in order that the stay application would
succeed.
[14] Secondly, Reliable Petroleum submits that the reasons at [5] of the stay decision
“express a conclusion that was not necessary to support the decline of the stay sought by the
Appellant.”17 In essence it appears to be submitted that, as I concluded in the alternative that
the balance of convenience did not favour the grant of a stay I should not have, or need not
have dealt with, the first limb of the considerations relevant to the question whether a stay
ought to be granted. That I dealt with the argument in the order in which Reliable Petroleum
advanced matters during the hearing in support of its application, is not a basis for concluding
that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial
mind to the resolution of the questions that ultimately require determination, that is whether
permission to appeal should be granted, and if so, whether the appeal should be upheld. An
14 Letter to chambers, above n, 5
15 [2017] FWC 4244
16 Transcript, dated 15 August 2017 at PN15
17 Letter to chambers, above n, 5
[2017] FWC 4704
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application for a stay is very much an interlocutory application, and on any reasonable reading
of the stay decision, the views expressed were preliminary in nature. I did not conclude that
Reliable Petroleum did not have an arguable case with some reasonable prospects of success,
in respect of both the question of permission to appeal and the substantive merits of the
appeal. As is clear from the opening words of [5] of the stay decision, I was not persuaded on
the material advanced as to that state of affairs.
[15] As to the third matter, Reliable Petroleum submits that the reasons at [5] of the stay
decision “go directly to the essence of both the permission and substantive question that the
Full Bench will be asked to decide at the hearing of the appeal and express an opinion which
is clearly adverse to the prospects of the Appellant.”18 Whilst it is doubtless the case that I
gave consideration in determining the stay application, albeit in a preliminary way, to
questions that will be raised during the permission to appeal and appeal hearing, it is plain
that I did not express a concluded view on either of those matters. All that I did was to express
a view that I was not persuaded on the day of the hearing having regard to the limited material
advanced before me as to the arguable case that was advanced. As I was at pains to point out,
the view that I was not then persuaded was necessarily reached “without the benefit of hearing
Reliable Petroleum’s full argument and without the opportunity to undertake a thorough
analysis of the case material.”19 As at the date of hearing (15 August 2017), Reliable
Petroleum was yet to file its Appeal Book.
[16] The views expressed at [5] do not, as asserted, go to the essence of matters to be dealt
with during the appeal hearing, rather on any reasonable reading of that paragraph, it is clear
that I am expressing a view as to the persuasiveness of the case for a stay advanced by
Reliable Petroleum. A fair-minded lay observer would not, on this basis, reasonably
apprehend that I might not bring an impartial mind to the resolution of the questions that
ultimately require determination, that is, whether permission to appeal should be granted, and
if so, whether the appeal should be upheld. Put another way, it would be obvious to a fair-
minded lay-observer that having identified that I had reached the view expressed without the
benefit of full argument and without the opportunity to undertake a thorough analysis of the
case material, that I will take into account any such full argument and case material before
determining a concluded view as to permission to appeal, and if granted, the appeal.
[17] Fourthly, it is submitted that the reasons at [5] of the stay decision “are not qualified
by an express statement that they are preliminary views.”20 This submission is untenable.
First, though not expressly stated, the final sentence of [5] of the stay decision can only be
read as making the point that the view earlier expressed is preliminary. But, lest there be
doubt about this, one only needs to read the opening few words of the next paragraph to
understand that this is so. At [6] of the stay decision I said that in the circumstances “it is not
necessary for me to consider where the balance of convenience lies, however since the issue
was the subject of submissions and even if I am wrong in my preliminary assessment . . .”21
[emphasis added]
[18] A fair-minded lay observer would not, on reading the whole of that which is a seven
paragraph decision, reasonably apprehend that I might not bring an impartial mind to the
18 Ibid
19 [2017] FWC 4244 at [5]
20 Letter to chambers, above n, 5
21 [2017] FWC 4244 at [6]
[2017] FWC 4704
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resolution of the questions that ultimately require determination, that is, whether permission
to appeal should be granted, and if so, whether the appeal should be upheld.
[19] Lastly, it is submitted that on one reading of [5] of the stay decision it may be
suggested that “the position of the Deputy President is already sufficiently clear, even before a
thorough analysis of all of the appellant’s material that the application for leave to appeal and
the appeal itself have limited prospects.”22 This submission is also rejected. It is clear from the
last sentence of [5] of the stay decision that the view expressed was one “without the benefit
of hearing Reliable Petroleum’s full argument and without the opportunity to undertake a
thorough analysis of the case material.”23 It follows that a fair-minded lay observer would not,
on reading [5] of the stay decision, reasonably apprehend that I might not bring an impartial
mind to the resolution of the questions that ultimately require determination, that is, whether
permission to appeal should be granted, and if so, whether the appeal should be upheld.
[20] For the reasons given, I do not consider that any of the matters raised by Reliable
Petroleum, whether considered individually or collectively, having regard to the plain terms
of [5] of the stay decision, and even more so when the opening sentence of [6] is taken into
account, have the result that a fair-minded lay observer might reasonably apprehend that I
might not bring an impartial mind to the resolution of the questions the Full Bench in this
matter is required to decide.
[21] The application by Reliable Petroleum that I recuse myself from presiding over the
Full Bench to which its application for permission to appeal, and if granted, the substantive
appeal has been allocated, is refused.
DEPUTY PRESIDENT
Written submissions:
Appellant’s Submissions dated 28 August 2017.
Respondent’s Submissions dated 4 September 2017.
Printed by authority of the Commonwealth Government Printer
Price code C, PR595975
22 Letter to chambers, above n, 5
23 [2017] FWC 4244
AMISSION THE
