Note: An appeal pursuant to s.120 (C2011/3281) was lodged against this decision - refer to Full Bench decision dated 6 May 2011 [[2011] FWAFB 2702] for result of appeal.
[2011] FWA 672 |
|
DECISION |
Workplace Relations Act 1996
s.120 - Appeal of decisions
Mr Michael Priestley
v
Department of Parliamentary Services
(C2010/4187, C2010/4490, C2010/4569)
VICE PRESIDENT WATSON |
SYDNEY, 2 FEBRUARY 2011 |
Application for disqualification - alleged actual and apprehended bias - Workplace Relations Act 1996 s 100.
Introduction
[1] This decision concerns an application by Mr Michael Priestley that I disqualify myself from the hearing of the applications for a stay in appeals C2010/4490 and C2010/4569 (the stay applications) and the hearing of the appeals in C2010/4187, C2010/4490 and C2010/4569.
[2] A brief chronology of events relevant to Mr Priestley’s application is as follows:
• Mr Priestly filed an application to have a dispute settlement process conducted on 27 February 2009. Arbitration of the matter was allocated to Vice President Lawler.
• A second and third application to have a dispute process conducted were filed by Mr Priestley on 23 February 2010. These matters were also allocated to Vice President Lawler.
• On 1 July 2010 Mr Priestley filed a notice of appeal (C2010/4187) against a refusal or failure by Vice President Lawler to give reasons for decisions in the matter.
• On 8 July 2010 a notice of listing of the appeal was issued for 10 August 2010.
• On 12 July 2010 Mr Priestley applied for a directions hearing to consider certain procedural matters.
• A directions hearing was convened on 13 July 2010. At the hearing I granted leave to the Department of Parliamentary Services (DPS) to be represented by counsel.
• On 28 July 2010 the DPS sought an adjournment of the appeal with the consent of Mr Priestley.
• On 5 August 2010 Mr Priestley lodged a notice of appeal (C2010/4490) against the decision of Vice President Lawler of 20 July 2010. 1
• On 12 August 2010 Mr Priestley filed a notice of appeal (C2010/4569) against the decision of Vice President Lawler of 2 August 2010. 2
• The applications for a stay in matters C2010/4490 and C2010/4569 were listed on 20 August 2010. Mr Priestley did not appear. I granted leave to the DPS to be represented by counsel. The matters were adjourned indefinitely due to conciliation proceedings before Vice President Lawler.
• On 9 December 2010 Vice President Lawler wrote to the parties indicating that the conciliation in the matter before him should be regarded as at an end.
• On 16 December 2010 I listed the two applications for a stay. Against the objection of Mr Priestley I granted the DPS leave to be represented by counsel in the proceedings on that day. On announcing my decision to grant DPS leave Mr Priestley sought an adjournment to enable him to prepare an application for my disqualification on the grounds of actual and apprehended bias.
• Mr Priestly made an application that I disqualify myself in correspondence dated 21 December 2010. I listed the matter for hearing on 22 December 2010. Mr Priestley sought an adjournment of the matter to January 2011. As a result of that request the matter was adjourned to 19 January 2011.
• At the hearing on 19 January Mr Priestley represented himself and Mr Lovell of counsel represented the DPS.
Grounds for the Application
[3] Mr Priestley contends that I should disqualify myself from the proceedings on the grounds of apprehended and actual bias. His submissions are made in correspondence dated 21 December 2010 and 18 January 2011 and supplemented by oral submissions on 19 January 2011. Mr Priestley submitted that my decision to grant leave for Mr Lovell to appear on behalf of the DPS in the hearing of the stay applications on 16 December 2010 showed bias, was outside of jurisdiction and was a breach of duty under the Department of Parliamentary Services Union Collective Agreement 2008 - 2011 (the Agreement). 3 Mr Priestley also submitted that a failure to act quickly by not listing the stay applications before 16 December 2010 showed bias.
[4] Mr Priestley further submitted that the proceedings were misconducted in allowing the DPS to be present and represented during proceedings in lieu of its Secretary Mr Thompson. He submitted that non-disclosure of my discussions with Vice President Lawler concerning the conduct of the dispute applications that were subject to continuing proceedings before his Honour be considered additional grounds for my disqualification.
[5] The DPS submits that there is nothing on the face of the record to suggest actual bias and there is nothing on the face of the record to suggest that a fair-minded observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the matter. It submitted that the contention of Mr Priestley that granting leave to appear exceeded the powers conferred by the Agreement is nonsense. The DPS further submitted that Mr Priestley’s submission on the identity of his employer represents a misunderstanding of the public sector employment framework under which Mr Priestley is employed.
Actual Bias
[6] The allegation of actual bias relates to my decision to grant DPS leave to be represented by counsel. Contested applications for leave to appear are commonly considered by the tribunal. They are determined on the circumstances of the particular proceedings in accordance with the provisions of the relevant legislation.
[7] The proceedings are being conducted under the Workplace Relations Act 1996 (the Act) which deals with questions of representation in hearings before the Tribunal. In the absence of consent s 100 confers a discretion on the Tribunal and requires certain matters to be taken into account. The decision is a procedural matter and the appeal provisions in the Act do not apply. The parties made submissions on the relevant section of the Act when the issue of representation was first debated before me on 13 July 2010.
[8] In my view the Agreement which conferred the powers of dispute resolution on the Tribunal does not modify the operation of the Act in relation to representation. Beyond the assertion, Mr Priestley has not explained how this might be the case.
[9] In hearings of appeals and stays of decisions it is common for parties to be represented by counsel by leave of the Tribunal. The decision I made was not unusual or uncommon in any way. Having regard to the subject matter of the proceedings I consider that it is entirely appropriate.
[10] Mr Priestley is clearly aggrieved by the decision to grant leave to appear but he has not established that making a decision contrary to his submissions arises from, or gives rise to, bias of the decision-maker. Making an unexceptional decision about representation does not indicate a closed mind to the issue of representation, the stay applications or the matters under appeal. I reject the allegation of actual bias.
Apprehended bias
[11] The test for apprehended bias is well established. 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. 4 The application of the test requires two steps. First it requires the identification of what is said might lead a judge to decide a case other than on its legal and factual merits. Secondly there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion of an interest will be of no assistance until the nature of the interest and the asserted connection with the possibility of departure from impartial decision making is articulated and the reasonableness of the asserted apprehension is assessed.5 In the absence of satisfaction of the test tribunal members have a duty to hear and determine matters before them.
[12] The submissions of apprehended bias relate to the decision to grant leave to appear, allegations of delay and allegations of misconduct of the proceedings. I have addressed the issue of leave to appear above. As granting leave to appear is common in appeals and applications for a stay it would not be reasonable for a fair-minded observer to form a view that the decision indicates that I might not bring an impartial mind to the determination of the matters before me. I doubt in any event that a fair-minded observer would come to such a view.
[13] The alleged delay is not significant when the chronology of the matter is considered. As the matter was adjourned pending efforts by Vice President Lawler to conciliate a settlement and his Honour advised me on 9 December 2010 that conciliation was unsuccessful, listing of the matter a week later is not an unreasonable delay. In my view no fair-minded observer would reasonably come to a view that this delay leads to the conclusion that I would not bring an impartial mind to the matters before me.
[14] The allegation of misconduct of the proceedings relates to my conversation with Vice President Lawler and permitting participation of DPS. I indicated the nature of those communications in the proceedings (PN85). The communications involved an enquiry by me as to whether the conciliation proceedings were completed and his subsequent advice, after checking with the parties, that they were. The enquiry was appropriate to determine when to relist the stay applications.
[15] There is a further issue of the proper identity of the employer. This matter is strongly contested but has not been fully argued. Permitting DPS to participate in the proceedings to date is the only sensible course that could have been adopted.
[16] I do not believe that any fair-minded observer would reasonably believe that these circumstances would give rise to doubts that I would bring an impartial mind to the determination of the issues that will fall for determination.
[17] For these reasons the matters raised do not constitute grounds for disqualification and I reject the application that I do so.
Conclusions
[18] I reject the application that I disqualify myself for the reasons above. The applications for a stay will be relisted at a time convenient to the parties and the Tribunal.
VICE PRESIDENT WATSON
Appearances:
M Priestley on his own behalf
J Lovell for the Department of Parliamentary Services
Hearing details:
2011.
Sydney
January 19
1 Mr Michael Priestley v Department of Parliamentary Services [2010] FWA 2684
2 Mr Michael Priestley v Department of Parliamentary Services [2010] FWA 5629
3 AC316234
4 R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 (Ebner).
5 Ebner at [8].
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