DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Regional Express Holdings Ltd, Png Yeow Tat, Mark Burgess and Maree Penglis
v
Stephen Hanson
(C2021/1397)

Appeal against decisions [2021] FWC 951 on 22 February 2021 and [2021] FWC 2200 on 22 April 2021 of Deputy President Boyce at Sydney in matter number AB2019/196.

Introduction and factual background

[1] On 15 March 2021, Regional Express Holdings Ltd (REX), Png Yeow Tat, Mark Burgess and Maree Penglis (jointly, the appellants) lodged a joint appeal, for which permission to appeal is required, against a decision of Deputy President Boyce delivered on 22 February 2021 1 (recusal decision) in which the Deputy President declined to recuse himself from determining a stop-bullying application made by the respondent, Mr Hanson, against the appellants pursuant to s 789FC of the Fair Work Act 2009 (FW Act). On 22 April 2021, the day before the hearing of the appeal, the Deputy President issued a decision in respect of Mr Hanson’s stop-bullying application2 (liability decision), in which he made findings that Mr Hanson had been bullied at work by the individually-named respondents to his application (Mr Png, Mr Burgess and Ms Penglis) and that there was a real risk that he would continue to be bullied at work by them. In light of this development, the appellants sought permission orally at the hearing on 23 April 2021 to amend their notice of appeal to add the liability decision as a decision being appealed against. This amendment was not opposed by Mr Hanson. An amended notice of appeal was filed on 27 April 2021. In the circumstances described, we consider it appropriate to allow the amendment. Accordingly our consideration of the appeal will proceed on the basis of the appellants’ amended notice of appeal.

[2] The circumstances which gave rise to the recusal application are as follows. Mr Hanson’s stop-bullying application was lodged on his behalf by his union, the Australian Licenced Aircraft Engineers’ Association (ALAEA), on 11 April 2019. On 26 April 2019, the matter was allocated to the Deputy President. The Deputy President conducted conferences in relation to the matter on 14 and 28 May and 20 June 2019, but the matter was unable to be resolved by agreement and a determinative hearing became necessary. It was agreed that Mr Hanson’s stop-bullying application should be heard together with an application lodged by the ALAEA under s 739 of the FW Act for the Commission to deal with a dispute about related matters (dispute application). Directions were made for the filing of evidence and submissions, and all of the parties’ evidence and submissions were eventually filed by 16 September 2019. The hearing commenced on 23 September 2019, and continued on 24 and 25 September 2019, 15 and 18 November 2019 and 18 February 2020. The Deputy President reserved his decision in respect of both matters at the conclusion of the hearing on 18 February 2020.

[3] The Deputy President issued a brief decision dismissing the dispute application on 29 July 2020. 3

[4] It is not in dispute that on 14 August 2020, the Deputy President’s Associate made a telephone call to Mr Sean Morgan, a lawyer employed by the ALAEA who had carriage of Mr Hanson’s stop-bullying application. The usual practice of the Commission is that where a telephone call is made from the chambers of a member of the Commission to a party in relation to a matter, the details of the call are noted on the file contained in the Commission’s computerised Case Management System (CMS). However, the file for Mr Hanson’s application contains no notation in respect of this telephone call (nor indeed any reference to it at all). The appellants were not informed about this telephone call by the Deputy President’s chambers.

[5] On 18 August 2020, Mr Morgan sent the following email to the Deputy President’s Associate:

“Dear Associate

As per our discussion last week (on 14 August 2020) in response to the Deputy President’s enquiries:

1. Mr Hanson only holds licences to certify REX aircraft and therefore Mr Hanson has to, and wants to, return to REX in order to resume his career as a LAME (i.e. Mr Hanson will not be able to work for another maintenance organisation as a LAME); and

2. It is my understanding that Mr Hanson is still presently receiving weekly payments of workers compensation, and that Mr Hanson’s nominated treating doctor will not certify Mr Hanson as fit to return to work unless he has the protection of bullying orders.

The respondent’s legal representative is copied into this correspondence.”

[6] As the last sentence of the email indicates, the legal representative of the appellants was copied into the email and thus became aware of the telephone call of 14 August 2020. In response to the email, the Deputy President’s Associate sent a “reply all” email in reply the same day which simply stated “The email below is noted, with thanks”.

[7] On 19 August 2020, the legal representative of the appellants sent the following correspondence by email to the Deputy President (omitting formal parts):

“We act for the Respondents in this matter.

It has come to the Respondents' attention that after judgment being reserved on 18 February 2020 the following has occurred:

1. On 14 August 2020 your Associate contacted the Applicant's Representative (Mr Morgan of the ALAEA) seeking information on your Honour's behalf.

2. Mr Morgan provided information to your Associate, which was then presumably communicated to your Honour.

3. None of the Respondents, nor us as the Respondent's Representative were party to, or aware of those communications or of any information being passed to the Commission in those communications.

4. Neither your Honour nor your Associate advised the Respondents that private communications with the Applicant had occurred.

5. At 2:02 pm on 18 August 2020 we received a copy of an email from Mr Morgan to your Associate confirming that communications had occurred on 14 August 2020 in response to enquiries from your Honour.

6. At 3:43 pm on 18 August 202 your Associate replied to Mr Morgan by email (copied to us) noting Mr Morgan's email.

Private communications between a member of the Commission (or his or her Chambers) and a party to a proceeding, in respect of the proceeding, should not occur. This is even more so the case when this occurs after judgment has been reserved and where the communication is initiated by the Commission.

The communications between your Associate (on your behalf) and Mr Morgan give rise to a reasonable apprehension of bias of the kind identified by the High Court in Re JRL; Ex parte CJL [1986] HCA 39. Accordingly, the Respondents respectfully request that your Honour recuse yourself from further hearing or determining the matter and refer the matter to the President of the Fair Work Commission for allocation to another member of the Commission. The Respondents consider that your Honour's recusal is necessary and appropriate to ensure that, as put by Chief Justice Barwick in Re JRL (at para [11]):

"justice must not only be done but must manifestly be seen to be done; when a judge has received private representations concerning a case, the court will not inquire whether the representations in fact worked to the prejudice of the party against whose interests they were made - it is enough that they might do so".”

[8] The Associate sent the following response to the above correspondence the same day (omitting formal parts):

“Your correspondence to the Deputy President of today’s date is noted.

Should the Respondent wish to press its claim for recusal, it should do so by way of formal application (i.e. by filing a Form F1).  It is noted that judgement in the substantive proceedings is imminent.

Alternatively, having regard to what follows, the Respondent is invited to respond to the contents of Mr Morgan’s email of 18 August 2020 (should it wish to do so).

By way of disclosure, the Deputy President notes as follows:

1. On or about 14 August 2020, in preparing his written reasons for decision in this matter, the Deputy President considered it appropriate to inquire of the parties as to the current employment status of Mr Hanson.  He initially instructed his Associate to contact the ALAEA by telephone to inquire “only” as to the current employment status of Mr Hanson.  The Deputy President’s Associate contacted Mr Morgan of the ALAEA by telephone in respect of this inquiry.  The contents of Mr Morgan’s email reply of 18 August 2020 go beyond the communication that was had over the telephone, albeit they reflect Mr Morgan’s response (during the discussion with the Associate), being that his understanding was that the Applicant remains employed by the Respondent, but also remains off work on Workers’ Compensation.  At the conclusion of the conversation, Mr Morgan stated to the Deputy President’s Associate that he wished to seek instructions so as to confirm his understanding of Mr Hanson’s employment status.  Mr Morgan’s understanding, and his desire to obtain instructions as to that understanding, was the only information passed onto the Deputy President.

2. Prior to your correspondence of today, it was the Deputy President’s intention to also have his Associate contact the Respondent’s legal representatives to clarify its position as to Mr Hanson’s employment status prior to any judgement being delivered.  That was to occur after Mr Morgan had clarified his understanding of Mr Hanson’s employment status, which Mr Morgan did by way of email yesterday.

3. Upon reflection, the Deputy President readily concedes that the inquiry made would have been more appropriately (and properly) done by simply emailing both parties.  The Deputy President apologies for any concern caused as a result of his approach to the making of the inquiry.

4. Absolutely no other communications with any person about this matter have occurred since judgement was reserved (by the Deputy President, his Associate, or anyone on his behalf).

Your correspondence appears to take the position that the communication between the Deputy President’s Associate and Mr Morgan is a black and white case of apprehended bias, giving rise to a “necessity” for the Deputy President to immediately disqualify himself from the proceedings.  That is not the legal position, and is a selective gloss on the case quoted.  Indeed, it is a gloss on all case law concerning recusal for apprehended bias.  In this regard, the Deputy President notes the statement of Justice Mason in Re JRL; Ex parte CJL (1986) 161 CLR 342 (“Re JL”) (at 351):

“As McInerney J. pointed out, the receipt by a judge of a private communication seeking to influence the outcome of litigation before him places the integrity of the judicial process at risk. A failure to disclose that communication will seriously compromise the integrity of that process. On the other hand, although the terms of a subsequent disclosure by the judge of the communication and a statement of its effect in some, perhaps many, situations will be sufficient to dispel any reasonable apprehension that he might be influenced improperly in some way or other, subsequent disclosure will not always have this result. The circumstances of each case are all important. They will include the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge”.

The Deputy President further points out that the concerns you raise in this matter are in no way comparable with the factual circumstances in Re JL.

The Deputy President will not be referring this matter to the President.  As you ought be aware, the President does not have authority to interfere with the decisions of other Members, including procedural decisions, except in properly constituted appeal proceedings. Under s.582(3) of the Fair Work Act 2009, Commission Members are not subject to direction from the President or anyone else about decisions they make in matters allocated to them.”

[9] On 20 August 2020, the Deputy President’s Associate (as part of an email chain emanating from Mr Morgan’s email of 18 August 2020) sent the following email to the appellants’ legal representative:

“I refer to Mr Morgan’s email below.

The Deputy President directs that the Respondent confirm (by way of return email) that the Applicant’s current employment status is that he remains employed by REX, but is otherwise on worker’s compensation.

Such confirmation is to be provided by no later than By 12:00pm AEST (midday), Friday, 21 August 2020.”

[10] Later the same day, the appellants filed a formal recusal application. The application sought orders that the Deputy President be recused from further dealing with the proceeding, and that the matter be referred to the President of the Commission for allocation to another member of the Commission. The stated grounds for the making of these orders were:

“1. Regional Express is the employer respondent in the Proceeding. The Proceeding was commenced by way of an application made by Mr Stephen Hanson who is an employee of Regional Express. In the Proceeding alleges bullying by Regional Express and named individual respondents who are each employees of Regional Express.

2. Regional Express makes this application on its own behalf and on behalf of each of the named individual Respondents in the Proceeding.

3. The Proceeding was heard by Deputy President Boyce on various occasions in 2019 and on 18 February 2020 was listed for hearing of submissions. On 18 February 2020, after hearing submissions the Deputy President reserved judgment and adjourned the matter.

4. On 14 August 2020 the Associate to the Deputy President, on the instruction of the Deputy President, contacted the representative of Mr Hanson by telephone to make enquiries into matters that the Deputy President sought to consider as part of making a decision in the Proceeding. This telephone communication was a private communication in that it occurred without the knowledge, consent or involvement of any of the named respondents in the Proceeding. The Deputy President did not advise the respondents (or any of them) of the telephone communication or what was said in it.

5. On 18 August 2020 the representative of Mr Hanson, Mr Morgan of the ALAEA, sent an email to the Associate to the Deputy President (copied to the respondents' representative) confirming that a telephone discussion had occurred on 14 August 2020 in response to enquiries from the Deputy President. A copy of this email is Attachment 1.

6. Later on 18 August 2020 the Associate to the Deputy President replied to the email from Mr Morgan (copied to the respondents' representative) noting receipt of Mr Morgan's email. The email response from the Associate did not seek any response or communication from the respondents nor did it request that the respondents provide their own information or confirm or contradict any information provided by Mr Morgan. A copy of this email is Attachment 2.

7. The communication between the Associate to the Deputy President and Mr Morgan on 14 August 2020:

(a) was a private communication to which the respondents (or any of them) were not a party and had no knowledge of;

(b) was at the initiative of, and upon the instruction of, the Deputy President;

(c) was in relation to matters that the Deputy President considered appropriate to enquire about in the course of preparing his written reasons for decision in the Proceeding;

(d) contained incorrect and prejudicial information;

(e) remained unknown to the respondents until 4 days after the communication occurred;

(f) was eventually brought to the attention of the respondents not by the Deputy President but instead by Mr Morgan;

(g) was made in circumstances where no input, involvement, response or opportunity to provide information of their own was provided to the respondents, either before or at the time of the communication; and

(h) was made in circumstances were even immediately after the communication was disclosed to the respondents (by email from Mr Morgan to the Associate to the Deputy President) no input, involvement, response or opportunity to provide information of their own was provided to the respondents.

8. On 19 August 2020 the representative of the respondents wrote to the Deputy President asking the Deputy President to recuse himself from further hearing or determining the Proceeding on the basis that the conduct that had occurred gave rise to a reasonable apprehension of bias. A copy of this letter and cover email is Attachment 3.

9. In response to that letter the Associate to the Deputy President replied by email on 19 August 2020, on behalf of the Deputy President, advising that should the Respondent wish to press a claim for recusal it should do so by way of formal application by filing a Form F1. The Deputy President offered by way of an alternative an invitation to Regional Express to respond to the contents of Mr Morgan's email of 18 August 2020 should it wish to do so. A copy of this email is Attachment 4.

10. The respondents submit that the matters set out paragraphs 1 to 9 are such that a fair-minded lay observer might reasonably apprehend that the Deputy President might not bring an impartial mind to the resolution of the Proceeding. A fair-minded lay observer might reasonably apprehend that the seeking and having of private communications with Mr Hanson's representative as to matters that have a bearing on the decision to be made by the Deputy President gives rise to an apprehension of bias.

11. The fair-minded lay observer might also reasonably consider that:

(a) Given the context of the private communication was the Deputy President inquiring as to matters for the purposes of preparing written reasons for decision those matters are of some importance, are necessary for the determination of the Proceeding and should have been ventilated openly and not sought only from one party;

(b) the inference is that the Deputy President would rely only upon the information provide by Mr Hanson on those matters; and

(c) the offer to the respondents to comment on those matters in the email sent on behalf of the Deputy President after the respondents sought that the Deputy President recuse himself does not cure the apprehension of bias.

12. The respondents also submit that the wording of the response on behalf of the Deputy President to the request by the respondents that the Deputy President recuse himself might also give rise to a fair-minded lay observer reasonably apprehending that the Deputy President might not bring an impartial mind to this application for recusal. In particular, the respondents rely upon [sic] the following statements in the email from the Associate dated 19 August 2020:

(a) "Your correspondence appears to take the position that the communication between the Deputy President's Associate and Mr Morgan is a black and white case of apprehended bias, giving rise to a "necessity" for the Deputy President to immediately disqualify himself form the proceedings. That is not the legal position, and is a selective gloss on the case quoted. Indeed it is a gloss on all case law concerning recusal for apprehended bias." (emphasis added);

(b) "The Deputy President further points out that the concerns you raise in this matter are in no way comparable with the factual circumstances in Re JL." (emphasis added); and

(c) "The Deputy President will not be referring this matter to the President. As you ought to be aware, the President does not have authority to interfere with the decisions of other Members, including procedural decisions, except in properly constituted appeal proceedings. Under s.582(3) of the Fair Work Act 2009, Commission Members are not subject to a direction from the President or anyone else about decision they make in matter allocated to them.".

13. It should be noted that these comments in paragraph 12(c) appear to be in response to the quite anodyne and unremarkable suggestion in the letter from the respondents’ representative dated 19 August 2020 that if the Deputy President recused himself then the Deputy President should refer the matter to the President for allocation to another member of the Commission.”

[11] After the above application was filed, the Deputy President issued directions on 20 August 2020 for the filing of written submissions in respect of the above recusal application. These directions required the parties to advise whether the recusal application should be decided on the papers or be the subject of an oral hearing.

[12] On the morning of 21 August 2020, the appellants’ legal representative sent an email to the Deputy President’s chambers requesting that, in light of the recusal application, the Deputy President’s direction of 20 August 2020 as to Mr Hanson’s current employment status be stayed. The Deputy President’s chambers responded shortly afterwards that the request was refused and compliance with the direction was required. Accordingly, the appellants’ legal representative confirmed that Mr Hanson’s employment status was that he remained employed by REX but was otherwise on workers’ compensation.

[13] On 2 September 2020, the appellants’ legal representative sent correspondence to Mr Morgan which raised the issue of what occurred in his telephone conversation with the Deputy President’s Associate on 14 August 2020. Paragraph 2 of the correspondence stated:

“2. As you know one of the central matters in the Application is a telephone conversation that occurred between yourself and the Associate to the Deputy President on Thursday 14 August 2020. Our understanding of how that conversation arose and its contents is as follows:

(a) The Associate to the Deputy President telephoned you.

(b) The Associate advised you that the Deputy President had asked him to enquire of you as to two questions:

(i) whether Mr Hanson remained employed by Regional Express; and

(ii) whether Mr Hanson intended to return to work with Regional Express.

(c) In response to those two questions you advised the Associate that:

(i) Mr Hanson remained an employee of Regional Express (Rex) and was still on workers' compensation. Mr Hanson's nominated treating doctor will not certify Mr Hanson as fit to return to work unless he has the protection of bullying orders;

(ii) Mr Hanson only holds licences to certify Rex aircraft and therefore he has to and wants to return to Rex in order to resume his career as a LAME. Mr Hanson could not work as a LAME for any other organisation.

(d) The conversation then ended and there was no request made by the Associate during the conversation for you to follow up or confirm this information in writing.”

[14] The correspondence went on to note, that in their submissions concerning the recusal application filed in accordance with the Deputy President’s directions, the appellants had contended that the contents of the conversation of 14 August 2020 were as set out in paragraph 2(a)-(d) above, but that Mr Hanson had not addressed this in his submissions in reply nor had he filed any witness statement made by Mr Morgan. The correspondence then stated:

“7. In the circumstances, we consider that it is appropriate for you to confirm what was said in the conversation between yourself and the Associate to the Deputy President on 14 August 2020. It is a central matter in the Application, and the only parties to that conversation were yourself and the Associate.

8. Accordingly, we seek your written confirmation that the contents of the conversation between yourself and the Associate on 14 August 2020 is as set out in paragraphs 2(a) to 2(d) above. We also seek your written confirmation that there were no other matters discussed in the conversation between yourself and the Associate. Please provide this written confirmation to us by 4:00 pm on Wednesday 2 September 2020.

9. We intend to put a copy of this letter and your response before the Commission in respect of the Application. Accordingly, if you do not respond or if we consider your response to be inadequate the Respondents reserve their rights to adduce evidence of the conversation including, but not limited to, seeking an Order from the Commission requiring you to give evidence in the recusal application. We would hope that such steps are not necessary and that you would assist the Commission and the Respondents by confirming the matters set out above.”

[15] On 4 September 2020, Mr Morgan sent the following correspondence in reply (omitting formal parts, emphasis added):

“I refer to your correspondence of 2 September 2020.

The recusal application is a matter for your client and the Deputy President; as you are aware Mr Hanson does not join in the application.

Nevertheless, it is the case that my email of 14:02 hours, Tuesday 18 August 2020, is an accurate statement of the content of my communications to Boyce DP’s associate.

In the circumstances, I do not regard it as appropriate that a solicitor for a party whose substantive claim in the proceedings is wholly opposed by your client appear, voluntarily or otherwise, as a witness for your client in any capacity.

More specifically, it is unclear to me on what basis you assert that an evidentiary hearing would be appropriate in the context of a recusal application, or how any evidentiary disputes could be resolved.

I note your reference to the possibility of seeking an order that I appear under s.590(2)(a). It is not apparent that you would be entitled to the same, or how my evidence could inform the Deputy President in determining the recusal application.”

[16] Later on 4 September 2020, the appellants filed, together with their submissions in reply to Mr Hanson’s submissions concerning the recusal application, a Form F51 application for an order to be issued requiring Mr Morgan to attend the Commission and give evidence in relation to the recusal application. The appellants’ Form F51 application contended, among other things, that the evidence of Mr Morgan would be the best evidence of what occurred in the telephone conversation between him and the Associate on 14 August 2020, and that there was inconsistency between the Deputy President’s version of this conversation and the version identified in the correspondence from Mr Morgan which we have set out above. The application appended the exchange of correspondence between the appellants’ legal representative and Mr Morgan.

[17] On 8 September 2020, the Deputy President’s Associate sent the following response to the application for Mr Morgan to be ordered to attend to give evidence (omitting formal parts):

“The Respondents have sought leave for the Commission to issue an order for Mr Sean Morgan of the ALAEA to attend to give evidence at the hearing of the Respondent’s Recusal Application.  Having regard to the grounds contained in the Form F51, the Deputy President does not grant leave for this order, and dismisses the Form 51 Application filed by the Respondents on 4 September 2020 in respect of Mr Morgan. 

Neither the ALAEA, nor Mr Morgan have filed evidence in these proceedings.  The Respondents carry the onus to prove their case as to apprehended bias.  Such a case, given that allegations of apprehended bias are serious allegations, ought to have had a clear evidentiary foundation at the time the Recusal Application was first made (albeit in correspondence from Clayton Utz Lawyers dated 19 August 2020, sent 10.22am).  On the submissions and evidence filed to date, it is not at all apparent to the Deputy President the basis upon which the Respondent is able to assert that “one of the central matters in the Recusal Application is the content of a telephone conversation that occurred on 14 August 2020 between Mr Sean Morgan and the Associate to the Deputy President”.  Whatever the content of the conversation between Mr Morgan and the Deputy President’s Associate was (or was not), the only relevant content for the purposes of the Respondents’ Recusal Application is that information which has been communicated directly to the Deputy President by his Associate.  Such content has already been fully disclosed to the parties.  Such disclosure was provided to the parties by way of email dated 19 August 2020, and prior to the Respondents’ filing their Form F1 Recusal Application.

It is noted that the Commission is unable to determine a matter on the papers absent agreement from the parties.  Given there is no such agreement, the Recusal Application will be listed for hearing.  A Notice of Listing will be emailed to the parties in due course.”

[18] We note that the Deputy President’s rejection of the application for Mr Morgan to attend and give attendance was communicated without him first having inquired of Mr Hanson, Mr Morgan or the ALAEA whether the application was opposed.

[19] The hearing of the recusal application before the Deputy President occurred on 27 October 2020. It will be necessary, for reasons which will become apparent, to discuss later in this decision what occurred during the hearing. The Deputy President reserved his decision as to the recusal application at the end of the hearing. Nothing further happened in relation to the matter until the Deputy President issued the recusal decision almost four months later.

The recusal decision

[20] After dealing with some background matters in his decision, the Deputy President set out a factual overview of the events leading to the recusal application. The Deputy President said:

“[17] On Friday, 14 August 2020, at my direction, my Associate contacted Mr Hanson’s lawyer (Mr Morgan) by telephone. Given that I was soon to publish my decision in the Bullying Application, I directed my Associate to inquire with the legal representatives of each party as to Mr Hanson’s current employment status, and whether he remained off work on Workers’ Compensation (Status Inquiry).” 

[21] The Deputy President then referred to evidence that was adduced before him at the hearing of Mr Hanson’s stop-bullying application to the effect that Mr Hanson was off work on workers’ compensation because, allegedly, of psychological injury caused by bullying, and said:

“[20] Given the time between that evidence, and the time I proposed to issue my decision in the Bullying Application, I considered Mr Hanson’s employment status immediately prior to my decision being issued an important matter to clarify and otherwise be updated upon. Indeed, if Mr Hanson was no longer employed by REX, or had been medically certified as being permanently unfit for work at REX, or on permanent restrictions, this would give rise to issues concerning the utility of any findings to be made in the proceedings, and/or any recommendations or orders as to ultimate relief (if any).

[21] It is not in contest that the clarification sought pursuant to the Status Inquiry essentially only relates to issues in the proceedings concerning relief (i.e. not questions of liability). This is especially so given that REX did not raise any issue (including any jurisdictional issue) in the proceedings concerning Mr Hanson’s assertion that the alleged bullying behaviour (if proven) created a “risk” to his health and safety.” (footnotes omitted)

[22] The Deputy President then described the events of 14 August 2020:

“[22] Sometime on Friday, 14 August 2020, my Associate verbally advised me that he had contacted Mr Hanson’s lawyer about the Status Inquiry by telephone, and that Mr Hanson’s lawyer had stated that his “understanding” was that Mr Hanson:

(a) remained employed by REX; and

(b) was off work on Workers’ Compensation.

[23] At this time, my Associate also advised me that Mr Hanson’s lawyer prefaced the foregoing answer by stating that he would need to double check on this understanding, and would confirm the position after making further relevant inquiries. I understood from this that Mr Hanson’s lawyer’s response to the Status Inquiry required further and subsequent confirmation by him.”

[23] The Deputy President next referred to Mr Morgan’s email of 18 August 2020 (which he labelled the “Lawyer Disclosure”), and said:

“[25] My Associate forwarded me the Lawyer Disclosure at 2.03pm AEST on Tuesday, 18 August 2020. I have no recollection of when I read this email. The electronic properties to the email appear to indicate that I ‘read’ the Lawyer Disclosure at 4.02pm AEST on 18 August 2020. That said, I do not proclaim to be a computer expert.

[26] I equally have no independent recollection of what was occupying my time on 18 August 2020. Having gone back and reviewed my diary and email interactions on 18 August 2020, such records indicate that five unfair dismissals were being heard together by me that day (i.e. five employees dismissed by the one employer). That hearing turned into a Commission assisted conciliation, to which I was actively involved in until around 2.00pm AEST (when the matters collectively settled). I received 29 emails on 18 August 2020. It was necessary for me to respond to six of them. The emails received and responded to by me concerned the approval of two enterprise agreements, the finalisation of an enterprise agreement decision, the drafting of an unfair dismissal decision, a request for amended directions in two matters, and case law I provided to my Associate to assist him in drafting a research memorandum for me on a point of law. The short point is that even putting aside the electronic properties as to when I read the Lawyer Disclosure, it appears that I was somewhat occupied all day on 18 August 2020.”

[24] The Deputy President then referred to the letter from the legal representative of the appellants of 19 August 2020 which requested that he recuse himself (which he labelled the “Clatz letter”), and said:

“[30] I observe that the Clatz Letter makes no inquiry, and seeks no clarification, of me or my Chambers as to the circumstances surrounding the Lawyer Disclosure. Further, it does not suggest that there be any opportunity for Mr Hanson to have any say as to my recusal, or that a hearing need occur prior to me making my determination as to recusal. Rather, the Clatz Letter simply asserts that my recusal is not only appropriate, but “necessary”.”

[25] The Deputy President set out the response from his chambers of 19 August 2020 to the “Clatz letter” (which he labelled the “Commission Disclosure”), and said:

“[32] I observe that I state in the Commission Disclosure that the contents of the Lawyer Disclosure:

(a) “go beyond the communication that was had over the telephone, albeit they reflect Mr Morgan’s response (during the discussion with the Associate), being that his understanding was that the Applicant [Mr Hanson} remains employed by the Respondent, but also remains off on Workers’ Compensation”;

(b) “[Mr Hanson’s lawyers] understanding, and his desire to obtain instructions as to that understanding, was the only information passed onto the Deputy President”; and

(c) that I instructed my Associate to make an inquiry of the ALAEA “only as to the current employment status of Mr Hanson”.

[33] Despite not challenging the Commission Disclosure, or making any further inquiries of me about it, REX seeks to rely upon what is said in (a) to argue either a gap in the Commission Disclosure, or an inconsistency in the Commission Disclosure, or an inconsistency between the Lawyer Disclosure and the Commission Disclosure. I reject the argument, and the inconsistent formulation of the words of the Commission Disclosure as asserted by REX.

[34] Items (a), (b) and (c) must be read together, and the Commission Disclosure must be read as a whole. The only information passed onto me by my Associate as to his conversation with Mr Morgan on 14 August 2020 was as set out in (b). This is consistent with my statement in (a) that, to my knowledge, the Lawyer Disclosure goes beyond what was discussed with my Associate. It is also consistent with the limited inquiry I directed my Associate to make in (c). I say more about REX’s assertions as to inconsistency, and its unsuccessful attempt to ground its Recusal Application upon same, later in this decision.

[35] At 4:50pm AEST on Wednesday, 19 August 2020, REX’s lawyer wrote to my Chambers, putting the Commission on notice that the Respondents intended to file a Form F1 (containing a formal application for recusal). I repeat that at no time prior to or after filing the Form F1 has REX sought to clarify with me, or obtain further particulars concerning, the contents of the Commission Disclosure.”

[26] After setting out further matters in the factual history, the Deputy President engaged in a discussion about the purported statement in the recusal letter that his recusal was “necessary” absent any input from Mr Hanson. In this connection, he set out the transcript record of an exchange between himself and counsel for the appellants, and criticised the approach taken by REX in relation to its recusal application.

[27] The Deputy President said that REX’s approach to recusal, as urged in the recusal letter, was “contrary to legal authority” and that “[a] decision-maker should not disqualify himself or herself without good cause, and must not reach that conclusion lightly” and referred to a number of High Court and other authorities to support that proposition. 4 The Deputy President then said:

“[50] From the case law extracts set out above, the short point is that claims as to recusal, in relation to bias or apprehended bias, are serious matters that require proper scrutiny, lest they become encouragement to, or grist to the mill for, the ill-informed and/or unworthy advocate. The submission by REX’s counsel that I could have simply treated the Clatz Letter as the only foundation for me to “necessarily” and/or immediately recuse myself from the determination of the Bullying Application, would not only be an approach bad at law, but bad in terms of procedure and natural justice. To the extent that REX asserts otherwise, I reject the assertion.”

[28] The Deputy President referred to a number of High Court authorities concerning the principles regarding apprehended bias and their proper application. 5 He characterised the decision of the High Court in Ebner v Official Trustee in Bankruptcy6 as requiring the application of a “three-step test”, and said that he was bound to follow and apply this test in determining the recusal application “[n]otwithstanding REX’s counsel’s submissions to the contrary”.7 The Deputy President then stated the following propositions of law, based upon reference to relevant authorities:

•  apprehended bias, like actual bias, is directed to prejudgement “incapable of being altered by evidence or argument”, not a mere predisposition; 8

•  the Ebner test is founded on a perception, not a “suspicion”; 9

•  there needs to be identified a logical connection between “the alleged apprehension of bias, and the prejudgement leading to an asserted finding as to impartiality”, and it is insufficient to simply assert an absence of impartiality or to proceed simply on the basis “upon what those in the legal profession (including decision-makers or lawyers) consider to be appropriate conduct, or purportedly unassailable ‘golden rules’ of conduct”; 10

•  ex parte communications are not sufficient, in and of themselves, to establish a logical connection, and there is no applicable rule of automatic recusal; 11 and

•  close attention must be paid to the context, and the fair-minded and informed lay observer does not rely upon inaccurate or incomplete information. 12

[29] The Deputy President then addressed the characteristics of the hypothetical fair-minded and informed lay observer, 13 and referred to the “Locabail Principle” (derived from Locabail (UK) Ltd v Bayfield Properties Ltd14) to the effect that “the contents of any disclosure by a decision-maker are facts that are directly taken into account by the fair-minded and informed lay observer”.15 The Deputy President went on to say in this connection that a requirement upon the decision-maker to disclose is not an absolute one, a failure to disclose does not give rise to a right of recusal, and a failure to disclose trivial or unexceptional matters cannot be used to ground a case as to apprehended bias.16 The Deputy President also stated that disclosure may extinguish a claim of apprehended bias,17 and a claim of apprehended bias cannot be sustained upon what a decision-maker does not know.18 The Deputy President then stated (footnotes omitted):

“[112] It is uncontroversial that hearings involving a claim of apprehended bias, which are being determined before the decision-maker whose recusal or disqualification is sought, should not involve a contest of facts (No-Contest Principle). I am not aware of any reason as to why the No-Contest Principle should not be applied to this Recusal Application. It follows that many of REX’s attempts to place facts into contention, and/or to ground its “we just don’t know” submissions, collapse. Notwithstanding this, it is appropriate to deal with such submissions in this decision to the extent they can be reasonably deciphered.”

[30] The Deputy President set out or summarised the parties’ written and oral submissions, and proceeded to deal with “Recusal Issue One” (that is, the contended apprehension of bias arising out of the ex parte communication which occurred on 14 August 2020). The Deputy President identified “four fatal flaws” in the recusal application in respect of “Recusal Issue One”, which were:

(1) An abandonment by REX’s counsel of any reliance upon prejudgement. The Deputy President said that it was “elementary that the moving party make out their case on the basis that certain events or conduct give rise to ‘prejudgment’, which holds a ‘logical connection’ to the real and reasonable possibility of a departure from impartial decision making”, and that “[a]bsent prejudgement, there is nothing to make a logical connection with, and therefore nothing that can be said to reasonably give rise to a departure from impartial decision making.” 19

(2) REX’s submissions wholly failed to accept, adopt or apply the three-step test in Ebner. 20

(3) REX’s submissions lacked precision as to the basis upon which it brought its recusal application. In this respect, the Deputy President identified what he perceived as inconsistencies between various statements made on behalf of the appellants in their correspondence and in their written and oral submissions. 21 The Deputy President said, among other things:

“[141] Despite my having pointed out the inconsistencies and errors in REX’s written materials to REX’s counsel at the hearing, he wholly resiled from clarifying or correcting REX’s position — including correcting what REX’s lawyer had represented in his 2 September 2020 correspondence (i.e. about what had been wrongly represented to both Mr Hanson’s lawyer, and the Commission). Instead, as the following transcript extract identifies, REX’s counsel sought to shield the inconsistency behind the cloak of ‘we just don’t know’…”

The Deputy President also identified “several difficulties with the shifting sands of REX’s position”, including that its counsel had expressly stated that REX did not challenge the “Commission Disclosure” and had not made any further enquiries or sought further particulars from the Deputy President about the “Commission Disclosure”. 22 The Deputy President also distinguished between the conversation between his Associate and Mr Morgan, and his Associate’s recounting of that conversation to him.23

(4) REX asserted that the “Lawyer Disclosure” sought to influence the Commission and was prejudicial in a manner that the Deputy President rejected. The matter identified in the “Lawyer Disclosure” which REX identified as prejudicial, namely the statement to the effect that Mr Hanson’s doctor’s opinion was that Mr Hanson would not be fit for work unless he obtains the protections of bullying orders from the Commission (which the Deputy President labelled the “Doctor Contention”) was not a live, let alone a significant, issue in the proceedings. In this respect, the Deputy President referred, amongst other things, to Mr Hanson’s own evidence that he needed to go back to work but before doing so needed the protection of bullying orders. 24

[31] The Deputy President said that any one or more of these “four fatal flaws” were sufficient to dismiss “Recusal Issue One”, but he was nonetheless required to apply the “three-step test” in Ebner. 25 The Deputy President identified, by reference to particular paragraphs in the transcript, aspects of REX’s case as to “Recusal Issue One”, and stated that the “foregoing submissions are directly contrary to the authorities set out in this decision (i.e. they misrepresent and/or misapply the law as it concerns the issue of apprehended bias in Australia)”.26 The Deputy President then said:

“[155] REX’s case as to Recusal Issue One is grounded in the contention that because an ex parte communication, initiated by me, occurred between my Associate and Mr Hanson’s lawyer, whilst judgement was reserved, and pending imminent publication of my decision, a hypothetical fair-minded and informed lay observer might apprehend that there is the real possibility that I might not bring an impartial mind to the determination of these proceedings.

[156] However, in making the foregoing assertion, REX has failed to articulate, or refused to acknowledge, by reference to applicable case law, the relevant matters to be attributed to the fair-minded and informed lay observer.

[157] In doing so, REX fails to set out the basis upon which any finding as to a ‘logical connection’ between the conduct it complains of, and its ultimate claim as to apprehended bias, can be made.

[158] It equally follows that REX’s case as to apprehended bias also fails to the extent that its overall contentions, individually or combined, can be sustained on a real and/or reasonable basis, such that they give rise to an apprehension that there might be a departure from impartial decision making.

[159] For completeness, in taking REX’s case at its highest, I apply the three-step test set down in Ebner as follows:

(i)  Step One – It is accepted that REX has satisfied Step One of the test in Ebner in that it might be said to have identified that the ex parte communication between Mr Hanson’s lawyer and my Associate might cause a hypothetical fair-minded and informed lay observer to consider that such communication might give rise to an issue/s in these proceedings to be resolved otherwise than on their merits. However, REX has not, by reference to my findings in this decision, satisfied step-one of the test in Ebner concerning the contents of the Lawyer Disclosure and/or its asserted ‘intention’ to influence me.

(ii)  Step Two – REX has failed to demonstrate, as distinct from asserting, how any factors as to apprehended bias in relation to Recusal Issue One are ‘logically connected’ to the determination of any issue/s in these proceedings impartially (or otherwise than on their merits).

(iii)  Step Three – Assuming contrary to Step Two, even if the hypothetical fair-minded and informed lay observer might apprehend some form of relevant factor as to bias going to ‘prejudgment’, REX has failed to establish that such hypothetical fair-minded and informed lay observer might reasonably conclude that I am unable to deal with or resolve the issues for determination in these proceedings impartially or otherwise than on their merits.”

[32] The Deputy President then dealt with “Recusal Issue Two”, being whether the contents of the “Commission Disclosure” that responded to the recusal letter gave rise to apprehended bias. The Deputy President at the outset described “Recusal Issue Two” as a “bolt-on” to “Recusal Issue One”. 27 The Deputy President set out what he considered to be a fair reading of the recusal letter, including that “given that a finding as to apprehended bias is essentially a foregone conclusion, giving rise to a ‘necessity’ that I immediately recuse myself, I should immediately send the file back to the President (or the Commission Registry) for reallocation to another member absent any further hearing or submissions on the issue of my recusal, and absent any conferral with Mr Hanson (and his legal representatives)”.28 The Deputy President then characterised the “Commission Disclosure” as making two points:

“(a) If REX is seeking to press an application for recusal based upon apprehended bias, it needs to do so formally. On the face of the Clatz Letter, it is asserted by REX that I simply recuse myself forthwith, without making a disclosure, without giving Mr Hanson’s lawyer the opportunity to make a disclosure, and without any further hearing. In rejecting REX’s approach in that regard, I fail to understand how the fair-minded and informed lay observer would view the Commission Disclosure as prejudging REX’s Recusal Application (in respect of Recusal Issue One). At its highest, my response to the Clatz Letter merely reflects the fact that I determined that any recusal application being pressed by REX would need to be undertaken formally, and that a procedure would then need to be followed to program the matter to determination.

(b) the Clatz Letter, as it concerns an allegation that the law supports its assertion that I ‘necessarily’ and immediately recuse myself, only makes reference to a four-line extract from the decision of Barwick CJ in Re JRL. The extract is far from a complete statement of the law as it concerns apprehended bias, in cases of ex parte communications, or otherwise. In my response, as set out in the Commission Disclosure, I identified from the decision of Mason J in Re JRL that a disclosure from a decision-maker may well dispel a claim as to apprehended bias grounded upon an ex parte communication. Again, I fail to see how the fair-minded and informed lay observer would logically or reasonably form a view as to the existence of apprehended bias based upon a decision-maker responding to a proposition of law, with a counter or alternative proposition of law.” 29

[33] The Deputy President stated that REX’s counsel “appeared to retreat” from REX’s earlier contentions that the “Commission Disclosure” was wrong to the extent that it directed that a formal application in respect of apprehended bias be made and put forward an alternative proposition of law, and that REX’s counsel “resorted to the proposition” that apprehended bias arose from the use of emphatic language in the “Commission Disclosure”. The Deputy President also stated that he did not accept that “a fair or reasonable reading of the Commission Disclosure supports any of REX’s contentions as to predetermination or prejudgement”, that he was not aware of any case law that supported the “generalised propositions” advanced by REX and, if REX was disgruntled that he did not recuse himself immediately and did not “welcome with open arms” the matters of fact and law asserted in the recusal letter, they were not matters that gave rise to apprehended bias or prejudgment. 30 The Deputy President then said:

“The fair-minded and informed lay observer may not be a lawyer, but he/she knows common place things, and has at least a basic understanding that an informal and/or poorly articulated application, made under the cover of a lawyer’s letter, will not ordinarily be accepted (on face value) by a decision-maker.” 31

[34] The Deputy President applied the “three-step” test in Ebner as follows:

“(i)  Step One – REX has not satisfied Step One of the test in Ebner in that it has not identified the basis upon which the contents of the Commission Disclosure, as it replies to the contentions made in the Clatz Letter, might cause a hypothetical fair-minded and informed lay observer to consider that such communication might give rise to REX’s Recusal Application being resolved otherwise than on its merits.

(ii)  Step Two – Assuming contrary to Step One, even if REX was able to relevantly identify the basis upon which a hypothetical fair-minded and informed lay observer might consider that there is an issue (in respect of Recusal Issue Two) giving rise to REX’s Recusal Application being resolved otherwise than on its merits, REX has failed to demonstrate, as distinct from asserting, how any such matters are ‘logically connected’ to the determination of any issue/s in REX’s Recusal Application impartially (or otherwise than on their merits).

(iii)  Step Three – Assuming contrary to Steps One and Two, even if the hypothetical fair-minded and informed lay observer might apprehend some form of relevant factor as to bias going to ‘prejudgment’ in respect of REX’s Recusal Application, REX has failed to establish that such hypothetical fair-minded and informed lay observer might reasonably conclude that I am unable to deal with or resolve the issues for determination in this Recusal Application otherwise than on their merits.” 32

[35] Having disposed of “Recusal Issue One” and “Recusal Issue Two”, the Deputy President regarded it as appropriate to make some “short observations” about the conduct of the hearing by REX’s counsel in response to comments made about this by Mr Hanson’s counsel. 33 The Deputy President said that he had reviewed the transcript of the recusal hearing and noted that it was “replete with statements by REX’s counsel to the effect that: I am entitled to make my submissions, let or allow me to make my submissions, let me finish my submissions, I am being interrupted, and you are not listening to me”. He quoted what was said to be an example of this from the transcript. The quoted passage included the Deputy President saying, in response to a statement made by the appellants’ counsel, that “…At the Bar there’s a difference between being fearless and being foolish…”, “…the way you’re approaching the case and your tone, you’re seeking to milk a penalty, aren’t you, in the rugby league sense…”, and “We’re getting into professional foul type territory”.34 The Deputy President then explained these comments as follows:

“[175] My analogy of “milking a penalty” in the foregoing exchange is a reference to football or rugby league terminology, whereby a player seeks to intentionally obstruct the run of play, feign injury, or otherwise call foul, in an attempt to garner a penalty. At the point in the hearing that the foregoing exchange occurred, it was becoming increasingly apparent to me, given the number of times assertions were being repeated as to me interrupting, not listening, or otherwise not letting REX’s counsel finish his submissions, that these statements were being made simply for the purpose of having them reflected in the transcript of the hearing.”

[36] The Deputy President then said (footnotes omitted):

“[176] In preparing these reasons, I have taken the time to listen to and assess the audio file of the hearing on 27 October 2020. That audio file, in my assessment, identifies that on various occasions, many of the statements reflected on transcript, were made by REX’s counsel in a high-pitched voice and patronising tone, whilst other exchanges appear to reflect a predisposition not to engage with, or otherwise provide clarification on, issues raised by me.

[177] The tentative views of a decision-maker, asking for clarification, putting alternative propositions to counsel, and/or raising or expressing doubts designed to query submissions made as to the facts or the law, so as to elicit further more relevant submissions on the issues to be decided, will not create an apprehension of bias under the three-step test in Ebner… 

[178] To the extent that the conduct of the hearing might be said to breach the fair hearing rule, or to the extent that exchanges between myself and REX’s counsel might be advanced as yet a further bolt-on recusal claim or application, I would reject them. Having reviewed the transcript, and listened to the audio file, in my view, the exchanges between REX’s counsel and myself go no further than exchanges concerning relevant inquiries or clarifications. The fact that REX’s counsel sought to respond to these inquiries by repeatedly making overtly transparent statements on transcript as to so-called ‘interruptions’ is of no particular concern to me, but I do consider it is appropriate to highlight and draw direct attention to same in this decision. In the context of the contentions being advanced by REX in this case as to the law, it is hardly surprising that I sought clarification from REX’s counsel at the hearing on REX’s submissions.”

[37] The Deputy President dismissed the recusal application.

Appeal grounds and submissions

[38] The appellants advanced five grounds of appeal:

1. The Deputy President failed to give genuine and realistic consideration to whether a fair-minded lay observer might reasonably have apprehended that he might not bring an impartial mind to the resolution of the issues in the proceeding by reason of either or both of:

a. the ex parte communications between his Associate and the Respondent’s lawyer (the Applicant in the proceedings below);

b. the content and tone of the communication by his Associate (on the Deputy President’s behalf) and the Appellants’ lawyer on 19 August 2020;

and thereby erred by failing to disqualify himself for an apprehension of bias.

2. The Deputy President acted upon a wrong principle by interposing a requirement of apprehended ‘prejudgment’ into the test of apprehended bias (at [52], [62], [63], [66], [72], [94], [126]-[127]).

3. The Deputy President acted upon a wrong principle by misunderstanding or unduly limiting the principles derived from Re JRL; Ex parte CJL (1986) 161 CLR 342 and subsequent authorities concerning (at [147]-[149]):

a. what constituted an ex parte communication ‘made for the purpose of influencing’ his decision; and

b. what constituted a ‘live and significant issue’,

in circumstances in which the Deputy President accepted (at [21], [149](c)(iv)) that the inquiry made by his Associate and the communication made by the Respondent’s lawyer were about issues that were relevant to the determination of the proceeding.

4. The Deputy President acted upon a wrong principle by identifying and applying a ‘No-Contest Principle’ (at [112]), when no such principle exists.

5. The Deputy President acted upon a wrong principle and, further or alternatively, denied the Appellants procedural fairness by:

a. refusing the Appellants’ application for the Respondent’s lawyer (the Applicant in the proceedings below) to give evidence, in circumstances in which a factual question was raised about the content of the verbal communication between the Deputy President’s Associate and the Respondent’s lawyer;

b. further or alternatively to Ground 5.a., hearing the Appellants’ disqualification application in circumstances where the Appellants had been denied permission to adduce evidence from the Respondent’s lawyer and in which a factual question was raised about the content of the verbal communication between the Deputy President’s Associate and the Respondent’s lawyer; and

c. further or alternatively, determining the factual question as to the content of the verbal communication between the Deputy President’s Associate and the Respondent’s lawyer in the absence of formal evidence (at [86](d), [107](b), [134], [144]).

[39] The appellants submitted that the Deputy President’s reasons for the recusal decision, together with his conduct and communications with the appellants’ lawyers prior to the hearing of their recusal application, and his conduct at that hearing, demonstrate that he failed to give genuine and realistic consideration to the matter he was called upon to consider: whether a fair-minded lay observer might reasonably have apprehended that he might not bring an impartial mind to the resolution of the issues in the stop-bullying proceeding by reason of either or both of the impugned communications. It was submitted that this failure stemmed, in part, from a misunderstanding of the test for apprehended bias and the legal principles concerning the adducing of evidence as to the issue of apprehended bias, and also from what presented, in his communications and at the recusal hearing, as a closed-minded attitude to the consideration of whether he should recuse himself. Those matters, it was submitted, reinforce the apprehension of bias that a fair-minded lay observer would feel by reason of the impugned communications.

[40] In relation to grounds 2 and 3 of the appeal, the appellants submitted that the Deputy President repeatedly criticised the appellants for making submissions that were wrong in law and indeed misrepresented the law, when in fact it was apparent that the Deputy President misunderstood key principles that he was required to apply in determining the recusal application. This included treating the High Court decision in Ebner as involving a three-step process when it was expressly described as a two-step process. While the appellants did not rely on this as a separate ground of appeal, they submitted that there were two errors of law which materially affected the recusal decision. First, the Deputy President wrongly held that it was necessary to establish “prejudgment” (or apprehended prejudgment) in order to establish actual or apprehended bias. It was submitted that prejudgment is one, but not the only, basis upon which partiality may be apprehended, and this interposition of a separate, mandatory element of prejudgment was a material departure from the test in Ebner and led the Deputy President to wrongly conclude that there was a fatal flaw in the appellants’ case. Second, the Deputy President misunderstood or unduly limited the principles in Re JRL; Ex parte CJL, 35 in that the question was whether the communications between the Deputy President’s Associate and Mr Morgan were about a substantive issue in the proceeding such that a fair-minded lay observer might lack confidence in the Deputy President’s impartiality, and it was not relevant whether Mr Morgan subjectively intended to influence the Deputy President in his 18 August 2020 email. It was submitted that, in any event, the focus on this email was misplaced and that it was the earlier ex parte communication between the Associate and Mr Morgan, and the Deputy President’s direction to make that communication, about a matter relevant to the stop-bullying application that was the issue. It was this element of the Deputy President’s conduct, and the private conversation between his Associate and Mr Morgan (the contents of which remain obscure), which attracted comparison with Re JRL and required attention to whether the principles in that and subsequent cases concerning ex parte communications justified recusal.

[41] As to appeal grounds 4 and 5, the appellants submitted that the “No-Contest Principle” identified by the Deputy President was not supported by the authorities and, while there will often be good reasons for a decision-maker the subject of a claim of apprehended bias not to hear and determine a factual contest, that does not mean it is never permissible or appropriate to receive evidence in relation to such matters, even if it is contested, or that the decision-maker can ignore a factual dispute and proceed on the basis that one account is correct without allowing it to be tested. There was, it was submitted, a live issue about what the Deputy President asked his Associate to do and what was said on the telephone between the Associate and Mr Morgan arising from inconsistencies in the accounts that were presented of those events. The Deputy President’s “disclosure” did not neutralise the issue because the inconsistencies arose partly from that disclosure, and it was not open to the Deputy President to ignore the factual issues as to the content and background of the impugned communications or, worse, to resolve the contest without hearing evidence. The Deputy President, it was submitted, needed either to try the issue or give due weight, in evaluating what the fair-minded lay observer would have apprehended, to the uncertainty arising from the private nature of the communications coupled with the inconsistencies in the accounts of them.

[42] In respect of appeal ground 1, the appellants submitted that the errors of law identified and the Deputy President’s approach to evidence were symptomatic of a broader failure by the Deputy President to give genuine and realistic consideration to whether a fair-minded lay observer would reasonably apprehend that he might not bring an impartial mind to the resolution of the stop-bullying proceeding. The fair-minded lay observer would be driven by the relevant events to ask the following questions:

•  Why did the Deputy President make a deliberate decision to contact the Respondent’s lawyer, and wait for his response, before contacting the appellants’ lawyers?

•  Why would the Deputy President then say he did something different in his reasons for the primary decision?

•  Why would Mr Morgan have addressed topics about Mr Hanson’s desire and need to continue working for REX and what his doctor would certify “in response to the Deputy President’s enquiries”, and later confirm that his email reflected what he told the Associate, if his conversation with the Associate was limited to what the Associate purportedly reported to the Deputy President?

•  Why did the Deputy President require the appellants to make a formal application for his recusal, which was not necessary, and note that his substantive judgment was “imminent”, if not to discourage the appellants from pursuing the issue?

[43] These concerns, it was submitted, would have been reinforced by the Deputy President’s conduct in his communications with the appellants’ lawyers and his conduct of the hearing. His interactions with the appellants’ counsel at the hearing gave the appearance, if not of an animus against the appellants, then at least of a predilection against them which reached the level of closed-mindedness. This was borne out by reading the Deputy President’s reasons for the recusal decision, which focus on perceived “inconsistencies”, “fatal flaws” and lack of clarity and confusion in the appellants’ arguments and included an observation that the appellants’ counsel made submissions in a “high-pitched voice and patronising tone”.

[44] The appellants submitted that permission to appeal should be granted because it was in the public interest that justice in the Commission is seen to be done in a fair and unbiased manner, and the appeal called on the Full Bench to evaluate whether that occurred in this case and to clarify the proper principles and procedures to be applied by single members in making that evaluation for themselves. It was submitted that the appeal should be allowed and the proceeding allocated to another member for a new hearing.

[45] In his submissions, Mr Hanson accepted that the recusal decision was not a discretionary one but was jurisdictional in nature. Accordingly, the correctness standard applied to the appeal so that the question to be determined was whether or not the Deputy President should have recused himself. Mr Hanson submitted that this question was to be resolved by reference to the two-step test in Ebner, which established a universal principle applicable to all claims of apprehended bias. This principle requires a person making a recusal application to identify what is said to give rise to the apprehension, and why this is rationally so. Additionally, it was submitted, the application of the principle requires the further step of asking whether the fair-minded lay observer might apprehend in the totality of the circumstances a lack of impartiality.

[46] Mr Hanson submitted that, insofar as the appellants relied on the telephone communication between Mr Morgan and the Deputy President’s Associate, this involved no information passing to the Deputy President. That is, regardless of the content of the telephone call, it cannot logically lead to a risk that the Deputy President would not bring an unbiased mind to the determination of the proceeding, so that the claim of apprehended bias must fail at that point. The claim would also fail if the appellants had relied on the information that was in fact transmitted from the Associate to the Deputy President, which the Deputy President had disclosed as consisting of the fact that, as Mr Morgan understood it, Mr Hanson remained employed by REX but was on workers’ compensation. This was not new information or relevant to the merits of the application, and thus it could not be the case that the Deputy President could make a decision based other than on the evidence and arguments in the case.

[47] In any event, Mr Hanson submitted, it could not be rationally said that a fair-minded lay observer could reasonably apprehend a lack of impartiality, given:

•  the curative steps taken by the Deputy President, including his unchallenged disclosure and the provision to REX of an opportunity to respond;

•  the context of the communication, particularly in light of the Commission’s broad powers to inform itself and its flexibility in respect of its procedures; and

•  the lack of any dispute about the matters communicated.

[48] Any complaint about the Deputy President’s response to the recusal letter was without substance, since the Deputy President simply gave short reasons why the recusal request was refused, and disagreeing with a party, even in slightly terse terms, does not logically lead to an apprehension that the decision-maker will not proceed to bring an impartial mind to the rest of the proceeding. The Deputy President’s response remained well within the bounds of accepted norms of judicial writing, was in response to a significant request made without consideration of the Commission’s processes or fairness to the other side and in the most high-handed manner possible, and its analysis was accurate.

[49] Specifically in respect of the grounds of appeal, Mr Hanson submitted in relation to the first appeal ground that the recusal decision showed the Deputy President considered, in detail, the question of recusal in light of the principle set out in Ebner. It was perfectly sensible for the Deputy President to make an enquiry as to Mr Hanson’s status with Mr Hanson (via his representative) first, before confirming with REX (and indeed would be strange to do otherwise). It was further submitted that the matters raised in paragraph [17] of the recusal decision are not in fact inconsistent with the Deputy President’s disclosure (conveyed in the third person via his Associate), and on a fair reading at best reveal a drafting error; that Mr Morgan’s motivations are irrelevant, as is the content of his conversation with the Associate; and it was entirely appropriate for the matter to proceed by way of formal application, particularly given the significant consequences for Mr Hanson. The appellants’ complaint about the Deputy President’s conduct of the hearing, and the adverse comments in the recusal decision, do not give rise to error, and it certainly could not sensibly be said that the recusal decision was affected by bias. It was also submitted that, in respect of the hearing, we should listen to the recording of the hearing as well as read the transcript.

[50] In relation to the second appeal ground, Mr Hanson submitted that the Deputy President’s comments about prejudgment are responsive to the appellants’ submissions which sought to distinguish Ebner on the basis that it involved prejudgment, and that it is not inherently incorrect to say that impartiality is inextricable from an absence of prejudgment. As to the third appeal ground, the Deputy President correctly concluded that he was not bound by Re JRL to recuse himself and otherwise applied the superseding principle in Ebner. The Deputy President’s consideration of whether Mr Morgan’s email of 18 August 2020 was intended to influence him was in response to submissions made by the appellants about that very matter. Mr Hanson submitted that appeal grounds four and five are misplaced because Mr Morgan had nothing relevant to say, the only thing which mattered was the information that flowed to the Deputy President (which was fully disclosed by him), and there was no relevant contest of fact to be resolved. REX expressly declined to challenge this disclosure at first instance, either directly or by way of requiring the Associate to give evidence, and it cannot now do so on appeal.

Consideration

Relevant principles

[51] Undisclosed ex parte communications between a member of a court or a tribunal and a party about matters of substance in contested litigation are a serious matter. In the High Court decision in Re JRL; Ex parte CJL, 36 Gibbs CJ said that “[i]t is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other”,37 and Mason J (as he then was) said:

“A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide….” 38

[52] Similarly in the Supreme Court of NSW decision in Carbotech-Australia Pty Ltd v Yates, 39 Brereton J said that: “... where a judge is concerned, the mere fact of an ex parte communication is of importance, though not decisive, because it is such an obvious departure from the norms of behaviour understood by judges and the legal profession alike”.40

[53] In the Fair Work Commission, although some greater flexibility concerning communications between parties and the chambers of members is sometimes allowed having regard to the requirements of s 577(b) of the FW Act, it remains a bedrock principle that, in contested inter partes proceedings, a member should not engage in undisclosed communications with a party about a significant issue in contest. In this respect, a Full Bench of the Commission in CFMEU v LCR Group Pty Ltd 41 said:

“[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.”

[54] It is clear in this case that the Deputy President breached the principle stated in Re JRL by initiating, via his Associate, an ex parte telephone communication between his chambers and the legal representative of the applicant in the matter before him. This occurred after he had reserved his decision in the matter. The communication did not concern matters of a merely administrative or procedural nature but rather, as we explain later, matters of substantive significance in the proceedings. The Deputy President did not take any step to disclose the ex parte communication to the appellants prior to Mr Hanson’s legal representative disclosing it to them. And, as we will expand upon, the Deputy President has not subsequently explained the reason why he took the course of engaging in this ex parte communication.

[55] It is not surprising in the circumstances that this conduct led to an application being made by the appellants for the Deputy President to recuse himself on the ground of apprehended bias. It is well-established that ex parte communications may properly give rise to a reasonable apprehension of bias requiring a judge or decision-maker to recuse themselves from further dealing with a matter. However, a reasonable apprehension of bias requiring recusal does not automatically arise whenever an ex parte communication has occurred. It will depend on a consideration of all of the circumstances. The position in this respect was summarised by Brereton J in Carbotech as follows:

“The passages to which I have referred in JRL establish that while the (mere) fact that an ex parte communication takes place is an important one, it is not decisive, and closer examination may show that the informed reasonable lay observer might not form an apprehension of bias despite such communications. It will depend on the facts of each case whether communications between a judicial officer and one party to the exclusion of the other give rise to a reasonable apprehension of bias, and one must look to the whole of what happened to establish whether such an apprehension should be inferred.” 42

[56] However, once it is established that “the line was crossed” in that the ex parte communication has given rise to a reasonable apprehension of bias, the judge or decision-maker is disqualified and must recuse themself. 43 There is no exercise of discretion involved in this respect.

[57] There is no dispute in this appeal that the principles stated in the High Court decision in Ebner v Official Trustee in Bankruptcy 44 concerning apprehended bias are applicable in this case. In short, a judge (or tribunal member) 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.45 The application of the apprehension of bias principle requires two steps. First, it requires the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits. The second step is that there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits.46 It also remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.47

[58] As earlier set out, the Deputy President concluded that he was not disqualified from continuing with Mr Hanson’s case by reason of any reasonable apprehension of bias. His lengthy reasons show that he considered the Ebner principles as well as a number of other legal propositions which he regarded as applicable. The appellants’ grounds of appeal, in grounds 2, 3, 4 and 5 contend that specific errors of principle are apparent in the Deputy President’s reasoning process. However, as submitted by Mr Hanson, the ultimate question to be determined in the appeal is whether the Deputy President’s conclusion was correct or not since the rule against bias is a fundamental rule of procedural fairness and is therefore jurisdictional in nature.

[59] For the reasons which follow, we consider that the Deputy President’s conclusion was incorrect. By reason, first, of his engagement (via his Associate) in ex parte communication with Mr Hanson’s legal representative on 14 August 2020 and, second, his conduct in dealing with and determining the appellants’ application for him to recuse himself, the Deputy President gave rise to a reasonable apprehension of bias and was consequently disqualified from further dealing with Mr Hanson’s stop-bullying application. In reaching that conclusion, we consider that all of the appellants’ grounds of appeal have been made out.

What happened on 14 August 2020

[60] Because a determination of whether a reasonable apprehension of bias has arisen is highly dependent upon the particular facts of the case, and because the hypothetical fair-minded lay observer is taken to have knowledge of the material facts, it is necessary to identify at the outset what we consider to be the relevant facts about the ex parte communication which occurred on 14 August 2020. Those facts, however, must first be placed in the broader context of Mr Hanson’s stop-bullying application.

[61] Section 789FF(1) sets out the circumstances in which the Commission is empowered to make a stop-bullying order as follows:

(1)  If:

(a)  a worker has made an application under section 789FC; and

(b)  the FWC is satisfied that:

(i)  the worker has been bullied at work by an individual or a group of individuals; and

(ii)  there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

[62] There are two features of s 789FF(1) that are presently relevant. The first concerns the jurisdictional prerequisite for the making of a stop-bullying order in s 789FF(1)(b)(ii). It will not conceivably be possible to be satisfied that there continues to be a risk of the applicant worker being bullied at work by the same individual or group of individuals who, pursuant to s 789FF(1)(b)(i), have been found to have bullied that worker in the past, if the worker no longer remains in the same employment or at the same workplace as the individual or group of individuals and there is no reasonable prospect of the employment resuming in the future. Put shortly, there will be no exposure to the chance or hazard of continued bullying by certain persons if the applicant worker will never be “at work” with those persons in the future. 48 Whether the applicant worker remains “at work” or there is a reasonable prospect of the worker resuming being “at work” at some time in the future is therefore a critical factual question in the determination of any stop-bullying application because a positive answer to that question is necessary in order for the Commission to have power to make a stop-bullying order.

[63] The second is that, once the jurisdictional prerequisites in s 789FF(1)(a) and (b) are satisfied, the Commission is conferred with a wide discretion as to what, if any, orders are to be made, subject only to the condition that it must not make an order requiring the payment of a pecuniary amount. In circumstances where (as in Mr Hanson’s case) the applicant worker is suffering from a medical condition that prevents a return to the workplace without some appropriate modifications or protections, it is within the power of the Commission to make an order to give effect to such measures. However, depending on the circumstances of the particular case, it may not practically be possible to make an effective order of this nature. 49

[64] For relevant purposes, the position in the proceedings at the time the Deputy President reserved his decision was that:

(1) It was in contest whether, in connection with s 789FF(1)(b)(ii), there existed a risk that Mr Hanson would continue to be bullied at work by the appellants. 50 (We note that at the hearing on 27 October 2020, some eight months after the substantive hearing completed, counsel for the appellants appeared to concede in response to questioning from the Deputy President that it did not contest the existence of such a risk.51 However, counsel for Mr Hanson honourably pointed out that this concession was in error since the issue had been in contest.52 The Deputy President erroneously relied on the concession in his decision.53)

(2) It was factually not in contest that Mr Hanson had been off work since 2 July 2019 because of psychological illness or injury. This gave rise to an issue as to whether Mr Hanson would return to work and whether stop-bullying orders were necessary to allow that to occur. For example, counsel for Mr Hanson submitted, in her final submissions in reply:

“The last matter I wanted to raise.  It was said repeatedly throughout the submissions.  It was put, 'Well, if Mr Hanson goes back.'  Particularly in the context of the at-work question but it came up once or twice.  Mr Hanson is off work because of a psychological injury.  The evidence [is] unchallenged that psychological injury arose as a result of Rex's conduct via its officers and agents toward him.  The final straw being the press releases.

The Commission can't - it is a sad fact that many applicants in this jurisdiction, many applications failed because the applicant has either resigned or is rendered unfit by the conduct and is not returning to work.  But that's not happened here.  The point of this is to create a safe - is that we're seeking orders to create a safe work space for Mr Hanson so he can go back and the Commission would proceed on the basis that he will.” 54

(3) The parties appear to have proceeded by the time of the final submissions on the basis that the Deputy President should issue a decision making findings on the merits of the case before proceeding to make any final stop-bullying orders, 55 and thus presumably contemplated that there would be a further opportunity to make submissions about what, if any, orders should be made in the event that the Deputy President was satisfied as to the matters in s 789FF(1)(b) (and this was the approach subsequently taken by the Deputy President in the liability decision).

[65] We now turn to the events of 14 August 2020. We consider the following matters to be clearly established:

(1) The Deputy President directed his Associate to engage in an ex parte communication with the legal representative of Mr Hanson at a time when his decision in relation to Mr Hanson’s contested stop-bullying allegations remained reserved.

(2) The Associate engaged in a telephone conversation with Mr Morgan on 14 August 2020 pursuant to that direction. No record or note of that conversation was placed on the CMS file.

(3) It was accepted by the parties and by the Deputy President that Mr Morgan’s email of 18 August 2020 constituted the best evidence before the Commission of the telephone discussion. 56 It may therefore be accepted that in the discussion, initiated at the Deputy President’s request, Mr Morgan communicated to the Associate that:

● Mr Hanson only held licences to certify REX aircraft;

● Mr Hanson had to and wanted to return to REX to resume his career as a licensed aircraft maintenance engineer;

● it was Mr Morgan’s understanding that Mr Hanson was still receiving workers’ compensation payments; and

● Mr Hanson’s treating doctor would not certify Mr Hanson as fit to work unless he had the protection of bullying orders.

(4) The telephone discussion dealt with matters that were in contest and yet to be determined in the proceedings. In particular, the matters were relevant as to whether Mr Hanson would at some time return to work such as to give rise to the possibility that he might be at risk of continued bullying by the relevant individuals in the future, and whether and what type of orders should be made if the jurisdictional prerequisites in s 789FF(1)(b) were found to be satisfied.

(5) There was a subsequent discussion between the Associate and the Deputy President in which the Associate passed on information conveyed by Mr Morgan in the telephone call. If all the information conveyed by Mr Morgan was not immediately passed on orally by the Associate to the Deputy President on 14 August 2020, it was certainly passed on by way of Mr Morgan’s confirmatory email of 18 August 2020 which the Deputy President read. 57

(6) The Deputy President did not disclose the ex parte communication to the appellants at any time prior to Mr Morgan effectively disclosing it to them when he copied their legal representative into his email of 18 August 2020.

[66] We consider that the matters identified above have a twofold “logical connection” with an apprehension that the Deputy President might decide the matter other than on an independent and impartial basis:

(1) The fact that the ex parte communication was initiated by the Deputy President, causing the communication of matters to his Associate and to himself that were significant to the determination of Mr Hanson’s application, and was not disclosed by the Deputy President to the appellants, might cause the fair-minded lay observer to consider that the Deputy President might only or primarily be concerned with the position of Mr Hanson in his determination of Mr Hanson’s application and not the position of the appellants. In this respect, the fair-minded lay observer can be taken to be aware that it is accepted practice for a tribunal member such as the Deputy President not to have a private communication with a party after a decision has been reserved and to expect that this standard would be scrupulously adhered to, and an undisclosed departure from this practice would produce doubt and reduce confidence in the tribunal member. 58 As the appellants correctly pointed out in their second ground of appeal, the Deputy President focused in his recusal decision on whether the ex parte communication sought to or would influence him in his decision-making without ever properly addressing the perception that might arise from the fact that he directed that a private communication with one party over an issue of substance occur in the first place.

(2) The matters communicated to the Associate by Mr Morgan in the undisclosed telephone call might, when communicated to the Deputy President, influence his decision as to whether the jurisdictional prerequisite in s 789FF(1)(b) was satisfied by persuading him that there was a prospect of Mr Hanson returning to work with REX at some time in the future and thus facing the risk of continued bullying. The matters might also influence the Deputy President to exercise his discretion to make stop-bullying orders in Mr Hanson’s favour, if the jurisdictional prerequisites are satisfied, by persuading him that Mr Hanson’s career as a licensed aircraft engineer can only be restored if he returns to work with REX under the protection of stop-bullying orders. The fair-minded lay observer would be taken to have knowledge of the key elements of the statutory stop-bullying scheme, 59 and thus might have an apprehension that the Deputy President might be influenced in determining Mr Hanson’s application in the manner indicated.

[67] However, it is necessary to take into account all of the circumstances in assessing the reasonableness of any apprehension of bias. This includes the subsequent “disclosure” made by the Deputy President in his response to the recusal letter of 19 August 2020 since, as Mason J stated in Re JRL:

“… although the terms of a subsequent disclosure by the judge of the communication and a statement of its effect in some, perhaps many, situations will be sufficient to dispel any reasonable apprehension that he might be influenced improperly in some way or other, subsequent disclosure will not always have this result.” 60

[68] We do not consider that the Deputy President’s “disclosure” is sufficient to dispel the apprehension of bias we consider would reasonably arise from the facts of the ex parte communication which we have earlier set out for the following reasons:

(1) The Deputy President accepted that he directed his Associate to make the inquiry concerning the employment status of Mr Hanson, at least initially, by contacting the ALAEA only, and by telephone. However, the Deputy President provided no explanation as to why he directed the Associate to make the inquiry in this manner, despite apparently acknowledging that the appropriate and proper course of action would simply have been to make the inquiry by emailing both parties. It could not reasonably be thought that the Deputy President did not know at the relevant time that an ex parte communication with a party after a decision has been reserved, and prior to delivery of the decision, was a fundamental departure from the standards expected of judges and members of statutory tribunals: he was, prior to appointment, a longstanding member of the NSW Bar (and thus was presumably qualified for appointment under s 627 of the FW Act due to his knowledge of and experience in the law) and, further, had previously been admonished in an appeal decision in another matter for engaging in undisclosed ex parte email communications with a party shortly before issuing his decision. 61 The fair-minded lay observer would remain concerned that no reasonable, or indeed any, explanation for what occurred was provided by the Deputy President.

(2) Additionally, and in particular, the Deputy President did not explain why he directed that the communication be made by telephone, and did not direct that a record or note of the communication be kept and placed on the CMS file. The fair-minded lay observer would remain concerned that the Deputy President had not explained why he had undertaken a course of action which ensured that no written record was kept of the ex parte communication.

(3) The Deputy President stated that it was his intention to have his Associate contact REX’s legal representative to clarify its position as to Mr Hanson’s employment status prior to judgment being delivered, but only after Mr Morgan had clarified his understanding of Mr Hanson’s employment status. However, the Deputy President provided no explanation as to why Mr Hanson was to be given priority in this respect, nor did he say that he intended to disclose to REX and the other appellants the nature and content of his communication with Mr Morgan. That communication was only disclosed because Mr Morgan confirmed what he had said in an email that was copied to the appellants’ legal representative - a course that was apparently taken of his own initiative and which was not directed by the Deputy President. The fair-minded lay observer would be further troubled by these matters.

(4) In his “disclosure”, the Deputy President stated that he had instructed his Associate to “telephone to inquire ‘only’ as to the current employment status of Mr Hanson” (underlining added), but in the recusal decision the Deputy President said that he directed his Associate to inquire “as to Mr Hanson’s current employment status, and whether he remained off work on Workers’ Compensation” (underlining added). 62 The fair-minded lay observer would be concerned that the Deputy President did not fully explain the content of his direction to his Associate in his “disclosure” and would speculate as to the reason why.

(5) In the recusal decision, the Deputy President stated that Mr Morgan’s email of 18 August 2020 was forwarded by his Associate to him at 2.03pm that day, and that the “electronic properties” to the email appear to indicate that the Deputy President read it at 4.02pm. 63 The fair-minded lay observer would be concerned that this was not mentioned by the Deputy President in his earlier “disclosure” and would speculate as to the reason why.

[69] The above considerations are sufficient in our minds to justify the conclusion that the Deputy President erred in deciding not to recuse himself on the ground of a reasonable apprehension of bias. In summary, the fact of the Deputy President’s initiation of the ex parte communication with Mr Hanson’s lawyer about matters of substance in the litigation after he had reserved his decision, the lack of any Commission record of the communication due to the mode of communication chosen by the Deputy President, the nature of the information imparted to the Deputy President’s chambers and thence to him, the failure of the Deputy President to disclose to the appellants that the ex parte communication had occurred prior to Mr Morgan of the ALAEA doing so, and the deficiencies in the Deputy President’s “disclosure” made only after the appellants had sought his recusal, might in the circumstances described give rise to a reasonable apprehension on the part of the fair-minded lay observer that the Deputy President might not bring an impartial mind to the determination of Mr Hanson’s stop-bullying application.

[70] However, in addition to this, the subsequent conduct of the Deputy President in response to the appellants’ recusal application constitutes a further reason why he should have recused himself - whether treated as cumulative upon the matters already discussed above or as an independent basis for recusal. It is an “obvious and unremarkable proposition” that the behaviour of a decision-maker during the course of an application that they should recuse themself may become relevant in the determination of the application and, if the behaviour of the decision-maker constitutes “fighting his own case”, this may well of itself constitute a ground for recusal. 64 There are four aspects of the conduct of the Deputy President that are relevant in this respect and also demonstrative of the proposition in the appellants’ first ground of appeal that the Deputy President did not give genuine and realistic consideration to the appellants’ recusal application.

[71] First, certain aspects of the Deputy President’s response of 19 August 2020 to the appellants’ initial informal recusal request of that date might cause the fair-minded lay observer to apprehend that the Deputy President might have been aggrieved at the making of the recusal request and might not at this initial stage have determined it impartially:

(a) In requiring the appellants, if they wished to press their request for him to recuse himself, to file a formal application, the Deputy President “noted that judgment in the substantive proceedings is imminent”. That statement was obviously inaccurate since the judgment was not published until eight months later. The balance of authority is that an application for recusal need not be made by formal motion. 65 But, more importantly, the requirement that a formal application be filed together with the reference to the substantive judgment being imminent (with the implication being that the Deputy President had already made his decision and wholly or substantially prepared his reasons) might be understood as intended to discourage the appellants from pressing their recusal request.

(b) The Deputy President latched onto the use of the word “necessary” in the recusal request to assert that the appellants’ lawyers had misstated the legal position, placed a “selective gloss” on the decision in Re JRL and had put a “gloss” on “all case law” concerning recusal. The word “gloss” used in this context means “an artfully misleading interpretation” 66 so that, effectively, the Deputy President was stating that the appellants had deliberately misstated the law. However, on a fair reading of the recusal request, the appellants did not contend that the fact of the ex parte communication itself made it automatically necessary for the Deputy President to recuse himself; rather, they contended that the ex parte communication had given rise to a reasonable apprehension of bias which necessitated recusal (because the Deputy President was disqualified). That contention was based on an accurate statement of the law, and the Deputy President’s response might be regarded as misrepresenting what had been put by the appellants.

(c) The Deputy President also misrepresented what had been contended by the appellants in respect of the role of the President of the Commission. On a fair reading of the recusal request, the appellants did no more than advance the unremarkable proposition that, after recusing himself, the matter should be referred back to the President for allocation to another member. That proposition was entirely consistent with the provisions in ss 581 and 582 of the FW Act concerning the functions and powers of the President. However, the Deputy President in his response misrepresented this to be a request for the President to interfere with or direct the Deputy President as to any decision he might make.

[72] Second, the Deputy President’s rejection on 8 September 2020 of the appellants’ application for an order to be made requiring Mr Morgan to attend the Commission to give evidence in relation to the recusal application might be regarded by the fair-minded lay observer as possibly unreasonable and indicative of a potential lack of impartiality having regard to the following matters:

(a) The Deputy President rejected the application for Mr Morgan to be required to give evidence without first inquiring whether this application was even opposed by Mr Hanson, the ALAEA or Mr Morgan.

(b) The Deputy President had stated in his earlier “disclosure” of 19 August 2020 that the content of Mr Morgan’s email of 18 August 2020 had gone beyond the matters discussed in the telephone conversation between his Associate and Mr Morgan on 14 August 2020, which were said to be limited to Mr Morgan’s understanding that Mr Hanson remained employed by REX and off work on workers’ compensation and his desire to seek instructions to confirm his understanding. The Deputy President had further stated in his “disclosure” that it was only these limited matters which were passed onto the Deputy President by his Associate. However, Mr Morgan’s correspondence of 4 September 2020 to the appellants’ representative stated unequivocally that his email was an accurate statement of the content of his telephone communication with the Associate and, as earlier discussed, the Deputy President accepted in the recusal decision that Mr Morgan’s email of 18 August 2020 was the best evidence of the 14 August 2020 discussion. This discrepancy calls into question the accuracy of the Deputy President’s disclosure concerning not only what had occurred in the telephone conversation of 14 August 2020, but also what information had been relayed to the Deputy President by the Associate arising out of the telephone conversation.

(c) Mr Morgan was in the best position to give evidence concerning the telephone conversation of 14 August 2020 in circumstances where no suggestion had been made that the Deputy President would make his Associate available to give evidence (as occurred in Comcare v John Holland Rail Pty Ltd (No 3), 67 albeit a measure viewed with some skepticism on appeal68). The appellants were thereby denied the capacity to adduce evidence as to what information Mr Morgan had passed to the Associate and, inferentially, what information the Associate may have passed on to the Deputy President.

(d) The Deputy President pre-emptively ruled that the conversation between Mr Morgan and the Associate was not relevant to the appellants’ recusal application prior to the appellants having been heard in relation to that application and without considering that what was conveyed to the Associate was relevant to what may have ultimately been conveyed to him.

[73] Third, the Deputy President’s conduct at the hearing on 27 October 2020 concerning the appellants’ recusal application might be regarded by the fair-minded lay observer as indicating that the Deputy President might personally be aggrieved by the recusal application, might be “fighting his own case” in response to the application, and for those reasons might not give impartial consideration to the recusal application or Mr Hanson’s substantive application. A perusal of the transcript of the 27 October 2020 hearing shows that the Deputy President continually interrupted counsel for the appellants in the presentation of his case, repeatedly challenged the propositions advanced by counsel and sought to demonstrate that they were wrong, and at frequent intervals engaged in unfounded criticism of the appellants’ counsel. This went far beyond “forthright and robust indications of a trial judge’s tentative views on a point of importance” and crossed the line to an “impermissible indication of prejudgment”. 69

[74] The interruptions to the efforts of the appellants’ counsel to advance the case for recusal began almost immediately when counsel sought to take the Deputy President to some of the authorities upon which he relied. 70 This might initially be dismissed as an attempt by the Deputy President to bypass well-established principles and to get to the heart of the case. However, the interruptions continued to the point where the process of receiving submissions quickly became a continuing dialogue in which the Deputy President saw it as his role to rebut the entirety of the appellants’ case. It is difficult to isolate examples of this, since the dialogue was a continuing one which ran until the end of the appellants’ submissions such that any quotation from the transcript inevitably runs the risk of not capturing the full context. Bearing this in mind, however, one example is that at one point counsel for the appellants highlighted the difficulty that arose from the fact that they did not know what occurred in the conversation on 14 August 2020 between the Associate and Mr Morgan:

MR MAHENDRA: …The problem is, and this is where we don't know the answer to the fundamental question, we don't know what your associate asked of Mr Morgan. We've highlighted this.

THE DEPUTY PRESIDENT: Yes. Because in this letter - if you go to this letter of 2 September, have you got that, to Mr Sean Morgan?

MR MAHENDRA: I do, yes.

THE DEPUTY PRESIDENT: Then you've got 2(a) to (d), 2(b)(ii), you say: The conversation, whether Mr Hanson intended to return to work with Regional Express.

Now, you then say, down in - well, your solicitors say, down in paragraph 4: This is addressed at paragraph 9 of the respondent's outline of submissions.

But I can't see, anywhere, where there was ever a question raised as to whether Mr Hanson intended to return to work. You've asked Mr Morgan to accept 2(a) to (d) and certainly 2(b)(ii) is inconsistent with what's said at paragraph 9 of your submissions.

MR MAHENDRA: I don't understand how that's inconsistent, Deputy President. On what basis do you say - - -

THE DEPUTY PRESIDENT: My question was, is he still employed, 2(b)(i), and is he on workers compensation? Is he off work on workers compensation? There was nothing about his intention to return to work.

MR MAHENDRA: Well, that's where there's a fundamental breakdown between what we - we don't know what was said.

THE DEPUTY PRESIDENT: They're your words and they're inconsistent with your submissions, at paragraph 9. There's nothing - where, in your submissions at paragraph 9, so your submissions of 24 August, I mean this is your error, isn't it, or your inconsistency that you’re advancing between your submissions and the letter to Mr Morgan? There's nothing in there that advances a proposition that there was a question as to whether any inquiry was made as to Mr Hanson's intention to return to work.

MR MAHENDRA: How is it inconsistent with our submissions, Deputy President? There's nothing in our submissions that mentions - - -

THE DEPUTY PRESIDENT: Well, where does - - -

MR MAHENDRA: There's nothing in our submissions that mentions the queries. Now, Deputy President, I'm entitled to run my submissions in the best interests of my client. I'm not here to engage in an argument with you about this matter - about what we put forward in our submissions. You can either listen to my submissions and make a decision on them.

THE DEPUTY PRESIDENT: I'm entitled to engage with you and if you don't want to engage then that's a matter for you, but I'm asking you questions on your case. It's your case.

MR MAHENDRA: I know it's my case.

THE DEPUTY PRESIDENT: And I'm trying to get - - -

MR MAHENDRA: There's nothing, in paragraph 9, that raises the queries - - -

THE DEPUTY PRESIDENT: I'm trying to get to the substance of it, because all I'm getting is these golden roles from you and the golden rules simply won't do. This is a serious case.

MR MAHENDRA: It is a serious case.

THE DEPUTY PRESIDENT: You can't turn up here, having sought a recusal, on the basis of an email that was sent, and seek to fudge the substance. That's the main - - -

MR MAHENDRA: Sorry?

THE DEPUTY PRESIDENT: That's the main - - -

MR MAHENDRA: Sorry?

THE DEPUTY PRESIDENT: That's the main part.

MR MAHENDRA: Fudge the substance, Deputy President?

THE DEPUTY PRESIDENT: Yes. Well, there's an inconsistency between - - -

MR MAHENDRA: There is no inconsistency, Deputy President. 71

[75] In our view, the above exchange which arose out of a fairly simple proposition that the appellants, and by inference the fair-minded lay observer, are incapable of knowing what occurred in the 14 August 2020 telephone conversation, descended into (or continued) an argument in which the Deputy President sought to point out the “error” in the appellants’ submissions and led to him accusing them, or their counsel, of “fudg[ing] the substance”.

[76] Another example is as follows:

MR MAHENDRA: We then get to 18 August, where Mr Morgan sends an email to your associate - sorry, still on 18 August, your associate emails Mr Morgan back, saying, "The email below is noted, with thanks". There's no invitation to respond. This is four days after the initial conduct. There's no mention of the respondent having an opportunity to respond to any of that.

THE DEPUTY PRESIDENT: Right. What's - - -

MR MAHENDRA: That occurs at 3.43 pm.

THE DEPUTY PRESIDENT: Yes.

MR MAHENDRA: On 18 August.

THE DEPUTY PRESIDENT: So are you saying there's been a deliberation made, as at that point in time so, what, an hour and 41 minutes later, by me, that - - -

MR MAHENDRA: This is where your understanding - - -

THE DEPUTY PRESIDENT: There's no intention to ever seek the respondent's position on the email?

MR MAHENDRA: Frankly, Deputy President, this is where your understanding of these principles is fundamentally wrong. It's not a question of whether you were actually bias. It's not a question of whether - what your intentions were. Frankly, your intentions are irrelevant. What's important is the appearance that a reasonable person would have, a reasonable apprehension - - -

THE DEPUTY PRESIDENT: Fair-minded and informed lay observer. It's the real possibility of bias, not the probability, but with an emphasis on the word - - -

MR MAHENDRA: No, it's a suspicion.

THE DEPUTY PRESIDENT: - - - with an emphasis on the word "real". So you say it's suspicion, just suspicion?

MR MAHENDRA: Yes. A reasonable suspicion of bias. I'll go back to the authorities to make that proposition good. But what we the see, on 19 August, is a letter from my instructing solicitors, which asks - - -

THE DEPUTY PRESIDENT: So we get a letter at 10.22 am - - -

MR MAHENDRA: Yes.

THE DEPUTY PRESIDENT: - - - which seeks, effectively, recusal, without seeking any clarification as to what's occurred.

MR MAHENDRA: Yes. Because, at that stage, it is - there's obviously been a communication, with the intention to influence the decision that has been made, without consent, without notification, without disclosure.

THE DEPUTY PRESIDENT: But these are all the golden rules you talk about. But, again, we're on the test of reasonable apprehension of bias.

MR MAHENDRA: Yes.

THE DEPUTY PRESIDENT: Fair-minded and informed lay observer. So there's no fair-mindedness or informed lay observer in sending this letter, is there? There's no information sought - - -

MR MAHENDRA: Can we go back to the principles, Deputy President, because this is clearly something that I need to take you through, in terms of the - - -

THE DEPUTY PRESIDENT: I'd like to stick on this, for the moment, actually, since you - you said we were turning to my email. But - - -

MR MAHENDRA: I'm going to go through and identify the passages, if you need to read, the authorities that I've handed up and then I'll come back to the email.

THE DEPUTY PRESIDENT: Well, I just want to ask - raise this issue. Where, in the Act, can I simply send a matter back to the President or to - - -

MR MAHENDRA: That's not what it says. This, again - - -

THE DEPUTY PRESIDENT: - - - or to anyone else for reallocation.

MR MAHENDRA: Again, this is a misunderstanding of the letter, which - the letter asks that your Honour recuse yourself from further hearing or determining the matter, that's the first thing. Then it gets referred off to, whether it's the President or the registrar, or whoever.

THE DEPUTY PRESIDENT: But I've got to make a decision on that, don't I?

MR MAHENDRA: Yes.

THE DEPUTY PRESIDENT: I can't just say, "Well, there's been an ex parte communication, that's terrible, that's naughty, I'll just recuse myself". I've got to go through and make a decision. That's my duty, isn't it? 72

[77] Three aspects of the above exchange are of note, beyond the simple continuation of a running argument. First, as counsel for the appellants correctly observed, a number of the Deputy President’s comments here (and elsewhere) appear to be concerned with actual rather than apprehended bias. Second, the Deputy President continually sought to divert counsel from the submissions he wished to make in order to raise various points which he considered to be against the appellants’ case. Third, the Deputy President again sought to misrepresent what had been stated in the appellants’ initial recusal letter of 19 August 2020 as if the contention had been advanced that he should simply refer the matter back to the President rather than first determine whether a reasonable apprehension of bias had arisen. We note in respect of this last matter that the Deputy President went on to engage with counsel for the appellants about his power to recuse himself in response to that letter:

THE DEPUTY PRESIDENT: So just on that issue, what power to I have, under the Act, to simply, what, make a decision, in Chambers, and I just publish no reasons for decision and - - -

MR MAHENDRA: We didn't say that at all.

THE DEPUTY PRESIDENT: - - - then refer the matter - - -

MR MAHENDRA: This is - - -

THE DEPUTY PRESIDENT: Refer the matter back to the President. That's - - -

MR MAHENDRA: No, that's not what the letter says.

THE DEPUTY PRESIDENT: Well, what's it say?

MR MAHENDRA: It asked you to recuse yourself. Obviously you would need to publish a decision in order to do that. Obviously you would need to exercise a power, in order to do that.

THE DEPUTY PRESIDENT: But what is the power?

MR MAHENDRA: To recuse yourself?

THE DEPUTY PRESIDENT: Yes. No, to refer the matter back to the President, without having heard the matter - - -

MR MAHENDRA: Deputy President - - -

THE DEPUTY PRESIDENT: - - - on the basis of a letter? Where's the power? I mean it seems as though your submissions say that I simply have the power to do that. I'm just not - - -

MR MAHENDRA: Of course you do.

THE DEPUTY PRESIDENT: - - - understanding where.

MR MAHENDRA: Once you're in a position where you appreciate that you've engaged in behaviour that raises a reasonable apprehension of bias, of course you have the power to recuse yourself.

THE DEPUTY PRESIDENT: Where? Where do I have the power to recuse myself and send it back to - - -

MR MAHENDRA: It's inherent.

THE DEPUTY PRESIDENT: It's inherent?

MR MAHENDRA: Whether it's referred back to the President or back to the registrar is irrelevant. You have the power to disqualify yourself, in circumstances where there is a reasonable apprehension of bias. 73

[78] It is difficult to understand the import of the matters raised by the Deputy President. The rule against bias is of course a requirement of the duty to afford procedural fairness, which is a fundamental common law doctrine not excluded by the FW Act and is therefore applicable to the Commission. Notwithstanding this, the Deputy President appears to have considered he had no power to recuse himself in response to the appellants’ initial request that he do so. The next example, which followed shortly afterwards, is:

MR MAHENDRA: You've got an ex parte communication that's been made, that you initiated, let's not forget that. You did so without consent. You did so without disclosure. A communication has been received by you, intended to influence the outcome of the decision. That's not disclosed to us. That isn't consented to. We're not told anything about it.

THE DEPUTY PRESIDENT: So you got the communication, you got the email?

MR MAHENDRA: Not on 14 August. Between 14 and 18 August - - -

THE DEPUTY PRESIDENT: No, you got it on the 18th.

MR MAHENDRA: No, let me finish.

THE DEPUTY PRESIDENT: On the 14th - - -

MR MAHENDRA: No, let me finish.

THE DEPUTY PRESIDENT: - - - he was coming back to clarify - - -

MR MAHENDRA: Deputy President, let me finish my submission, please.

THE DEPUTY PRESIDENT: Well, no I won't let you finish your submission. What I'll say to you is, before you finish your submission take this into account. Mr Morgan had said he was coming back to clarify what he'd initially communicated. 74

[79] The above exchange speaks for itself. Finally, there is the exchange, quoted by the Deputy President himself in the recusal decision, as follows:

THE DEPUTY PRESIDENT: So you're saying the starting point is I can't be impartial as soon as I hear something?

MR MAHENDRA: No.

THE DEPUTY PRESIDENT: As a judicial officer, you can't be impartial as to influential - - -

MR MAHENDRA: We're not arguing actual bias, Deputy President. This is where your understanding is fundamentally wrong. It's an apprehension.

THE DEPUTY PRESIDENT: But you keep saying apprehension means suspicion - - -

MR MAHENDRA: Yes.

THE DEPUTY PRESIDENT: And it's apprehension, in the context of a fair-minded and informed lay observer.

MR MAHENDRA: Yes.

THE DEPUTY PRESIDENT: Which is clearly set out in Ebner. There's a twostep approach, some even say there's a three-step approach - - -

MR MAHENDRA: Deputy President, I - - -

THE DEPUTY PRESIDENT: - - - and there needs to be this logical connection. I mean - - -

MR MAHENDRA: I can see that you're against me on this point. It's abundantly clear, from this exchange, it's abundantly - - -

THE DEPUTY PRESIDENT: That's what you say. I'm - - -

MR MAHENDRA: Let me finish.

THE DEPUTY PRESIDENT: I'm trying to get you - - -

MR MAHENDRA: Let me finish.

THE DEPUTY PRESIDENT: - - - to convince me otherwise.

MR MAHENDRA: Deputy President, let me finish. It's abundantly clear, from your correspondence. What I'm going to do is I'm going to go through my submissions. I'm going to deal with each of the points I want to raise. I'd like to finish those submissions and I can see, from this exchange, that you're against me. If that is the case, so be it, we'll deal with it. But I'm entitled to finish my submissions. I'll make the points I wish to make, I'll highlight the passages that I wish to highlight and you can write your decision.

THE DEPUTY PRESIDENT: But I think - I don't really accept the proposition you're putting. At the Bar there's a difference between being fearless and being foolish and there's also - I suppose the concern I have is that the way that you're approaching the case and your tone, you're seeking to milk a penalty, aren't you, in the rugby league, sense, which - - -

MR MAHENDRA: No, I'm trying to get - - -

THE DEPUTY PRESIDENT: We're getting into professional foul type territory.

MR MAHENDRA: I'm trying to advance my client's case, as best as I can, in circumstances where I'm constantly being interrupted. You're not willing to listen to me when I wish to take you to the relevant principles that I wish to take you to. 75

[80] As counsel for the appellants properly pointed out, the Deputy President’s opening comment in the above exchange was directed to actual and not apprehended bias. As counsel also properly pointed out, it was perfectly apparent that the Deputy President was against him and not permitting him to put his submissions. This prompted the response from the Deputy President that counsel was, in effect, acting foolishly and was also “seeking to milk a penalty” – which we understand to be an imputation of unprofessional conduct. Neither of these comments had any proper justification.

[81] It needs to be emphasised that the whole of that part of the hearing during which counsel for the appellants sought to put his submissions is broadly speaking of the same tenor as the extracts above (except for the brief submissions in reply). Counsel for Mr Hanson invited us to listen to the audio recording of the hearing in addition to reading the transcript, and we have done so. The recording does not disclose to us anything unusual about the “tone” of counsel for the appellants which might have caused the Deputy President to respond in the way he did, although some understandable element of exasperation on the part of counsel is evident at certain points. The impression that a fair-minded lay observer might gain from reading the transcript and listening to the audio recording of the hearing is that the Deputy President was aggrieved at the making of the recusal application, had descended into the arena and was “fighting his own case”, and thereby might not bring an impartial mind to the determination of the recusal application or the substantive stop-bullying application.

[82] Fourth, the contents of the Deputy President’s reasons for the recusal decision might give rise to a reasonable apprehension that he might not decide the recusal application or the substantive stop-bullying application impartially. There are three aspects which are relevant in this context. Firstly, the Deputy President went well beyond a mere rejection of the appellants’ case for his recusal to a wide-ranging criticism of their entire case and the way in which it had been put so that, for example, the Deputy President said that:

•  by its recusal application, REX “has sought to challenge, or put in issue, a number of long standing and fundamental principles concerning the law of apprehended bias” and as a result many of its “arguments as to the law are fallacious”; 76

•  the “Clatz letter” contended that recusal was “necessary” absent any input from Mr Hanson, but that REX’s counsel “sought to recalibrate the REX position” by falling back to the “trite proposition” that it is a matter for the Commission as to how it conducts its proceedings, and that REX’s approach as to how the recusal application should be dealt with was “significantly inconsistent”; 77

•  claims of apprehended bias require proper scrutiny “lest they become encouragement to, or grist to the mill for, the ill-informed and/or unworthy advocate”, and REX’s counsel’s approach that the “Clatz letter” could be treated as the foundation for him to “necessarily” or immediately recuse himself “would not only be an approach bad at law, but bad in terms of procedure and natural justice”; 78

•  REX had not identified the categories of apprehended bias it relied on, and this was an “unhelpful lack of precision”; 79

•  it was necessary to apply a “No-Contest Principle” by which there should be no contest as to the facts in a hearing involving a claim of apprehended bias, and it followed that “many of REX’s attempts to place facts into contention, and/or to ground its ‘we just don’t know’ submissions, collapse” but it was nonetheless appropriate to deal with REX’s submission “to the extent they can be reasonably deciphered”; 80

•  REX’s recusal application suffered from “four fatal flaws”; 81

•  it was “elementary” that a claimant of apprehended bias make out a case of “prejudgment”, and REX through its counsel had abandoned any reliance on “prejudgment”, meaning that the Deputy President was “simply unable to determine a claim of recusal based upon an assertion as to apprehended bias”; 82

•  REX’s submissions “wholly fail to accept, adopt, or apply the relevant test laid down in Ebner”, this was “a fatal flaw or glaring omission in REX’s submissions”, and the Deputy President’s requests of clarification about this “went unanswered”; 83

•  despite the Deputy President “having pointed out the inconsistencies and errors in REX’s written materials to REX’s counsel at the hearing, he wholly resiled from clarifying or correcting REX’s position”, and REX’s counsel “sought to shield the inconsistency behind the cloak of ‘we just don’t know’”; 84

•  there were several difficulties with the “shifting sands” of REX’s submissions, REX’s submissions “do not make any sense”, and “any lack of clarity or confusion as to the conversation” arises from “REX’s inability or unwillingness to be precise and consistent in articulating its own case”; 85

•  REX’s submissions “misrepresent and/or misapply the law” in relation to apprehended bias; 86 and

•  the fair-minded lay observer would have a basic understanding that “an informal and/or poorly articulated application, made under cover of a lawyer’s letter” will not ordinarily be accepted. 87

[83] Criticisms of this nature might be appropriate in respect of an application for recusal which was utterly hopeless. However, for the reasons already stated, that was far from the case here. On any view, the appellants had a meritorious and straightforward case for recusal based upon the undisclosed ex parte communication with a party concerning matters of substance initiated by the Deputy President after he had reserved his decision. Any case of ex parte communications with a judge about a substantive issue gives rise to at least a prima facie case of apprehended bias. 88 A case of this nature was not deserving of the degree of scorn poured upon it in the recusal decision, nor was it to be deflected by the dissection of alleged inconsistencies in the way that case had been expressed at various points.

[84] Next, for the most part the various criticisms identified above were without foundation, misrepresented the appellants’ position or were based on misunderstandings of the law. We have already referred to the Deputy President’s mischaracterisation of the appellants’ recusal letter of 19 August 2020 in his response of the same date, and this continued throughout the recusal decision. The proposition that the appellants submitted that the principles in Ebner were not applicable and that this constituted a “fatal flaw” in their case is wrong. The appellants fully accepted and relied upon Ebner in their written and oral submissions as establishing the generally applicable principles, but simply made the unremarkable point that Ebner was not itself a case about private communications with (or by) a judicial officer, and sought to refer the Deputy President to a number of decisions that dealt specifically with that species of conduct. The principal criticisms made by the Deputy President concerning the legal foundations for the case advanced by the appellants were themselves based upon incorrect propositions of law. For example, the Deputy President used the so-called “No-Contest Principle”, which he said was “uncontroversial”, to reject any attempt by the appellants to place facts in contest or contend that they were unknown. No such principle in the terms formulated exists. While it has been acknowledged that contests of fact in respect of a claim of apprehended bias are undesirable and should be avoided, it is equally recognised that in some cases such contests are unavoidable and may need to be resolved by evidence. 89 In this case, there was an issue raised about the information conveyed by telephone by Mr Morgan to the Deputy President’s Associate as a result of the Deputy President’s request, which ultimately bore upon what information may have been conveyed by the Associate to the Deputy President. The Deputy President could not simply use the postulated principle to refuse to allow Mr Morgan to be required to give evidence and then assert that his “disclosure” as to what was conveyed to him was unchallenged. The appellants’ fourth and fifth grounds of appeal may be accepted in this respect. Likewise, it is not correct that “prejudgment” (actual or apprehended) is a sine qua non of any claim of apprehended bias. Prejudgment is but one category of circumstance which can give to a reasonable apprehension of bias: other categories include conduct, interest, association and extraneous information.90 Insofar as the ex parte communication on 14 August 2020 was concerned, this was a case of conduct, although some of the Deputy President’s subsequent conduct has elements of apprehended prejudgment. The appellants’ third ground of appeal is accepted in this respect.

[85] Finally, in paragraphs [172]-[178] of the recusal decision, the Deputy President, having already stated his decision to dismiss the recusal application, proceeded to engage in direct personal criticism of counsel for the appellants. This appears to have arisen out of some concern on the part of the Deputy President that the exchanges between himself and counsel at the hearing might further give rise to an apprehension of bias. If so, the Deputy President’s concern was well-founded for the reasons earlier set out. The proposition in paragraph [175] that counsel for the appellants was repeatedly making assertions that the Deputy President was “interrupting, not listening, or otherwise not letting REX’s counsel finish his submissions … simply for the purpose of having them reflected in the transcript of the hearing” appears to us to be entirely baseless and unfair. We consider that these assertions were made by counsel in the course of attempting to put his clients’ case in an appropriately forthright manner because the Deputy President was in fact interrupting him, not listening to him or otherwise not letting him finish his submissions. The further criticism in paragraph [176] that counsel for the appellants spoke on various occasions “in a high-pitched voice and patronising tone” barely dignifies comment except to say that it was entirely unjustified and inappropriate. The further proposition that the Deputy President was merely seeking “clarification” from the appellants’ counsel (paragraphs [176], [178]) is not an accurate reflection of what occurred at the hearing.

Conclusion

[86] The observance of procedural fairness is an implied condition of the exercise of the Commission’s jurisdiction, so that any breach of the rules of procedural fairness, including where apprehended bias is demonstrated, constitutes jurisdictional error. 91 The Deputy President thus fell into jurisdictional error by failing to recognise that he was disqualified from continuing to deal with Mr Hanson’s stop-bullying application by reason of a reasonable apprehension of bias. In that circumstance we consider that it is in the public interest to grant permission to appeal and uphold the appeal. The recusal decision must be quashed. It is also necessary, regrettably, to quash the liability decision. We recognise that it is unsatisfactory that, more than two years after it was lodged, Mr Hanson’s stop-bullying application has not yet been determined in accordance with law. His application will be referred to another member of the Commission who is in a position to deal with it expeditiously on the basis of the evidence and submissions received to date and such further evidence and submissions as the member may choose to receive.

Orders

[87] We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is upheld.

(3) The decisions of Deputy President Boyce of 22 February 2021 ([2021] FWC 951) and 22 April 2021 ([2021] FWC 2200) are quashed.

(4) The application in matter AB2019/196 is referred to Deputy President Easton for determination on the basis of the evidence and submissions received to date and such further evidence and submissions as he may choose to admit.

VICE PRESIDENT

Appearances:

Ms E Raper SC with Mr D Fuller of counsel on behalf of the appellants.

Ms L Saunders of counsel on behalf of the respondent.

Hearing details:

2021.

Sydney (with video-link to Melbourne):

23 April.

Printed by authority of the Commonwealth Government Printer

<PN729836>

 1   [2020] FWC 951

 2   [2021] FWC 2200

 3   [2020] FWC 3988

 4   Ibid at [45]-[49]

 5   Ibid at [53]-[57]

 6   [2000] HCA 63, 205 CLR 337

 7   [2021] FWC 951 at [62]

 8   Ibid at [65]-[68]

 9   Ibid at [69]-[70]

 10   Ibid at [71]-[76]

 11   Ibid at [77]-[91]

 12   Ibid at [92]-[101]

 13   Ibid at [102]

 14   [2000] QB 451

 15   [2021] FWC 951 at [105]

 16   Ibid at [107]

 17   Ibid at [108]-[109]

 18   Ibid at [110]-[111]

 19   Ibid at [123]-[127]

 20   Ibid at [128]-[131]

 21   Ibid at [132]-[143]

 22   Ibid at [144]

 23   Ibid

 24   Ibid at [146]-[149]

 25   Ibid at [150]

 26   Ibid at [150]-[152]

 27   Ibid at [161]

 28   Ibid at [163]

 29   Ibid at [164]

 30   Ibid at [165]-[169]

 31   Ibid at [169]

 32   Ibid at [170]

 33   Ibid at [172]

 34   Ibid at [174]

 35   [1986] HCA 39, 161 CLR 342

 36   [1986] HCA 39, 161 CLR 342

 37   Ibid at 346

 38   Ibid at 350

 39   [2008] NSWSC 540

 40   Ibid at [53]

 41   [2016] FWCFB 916

 42   [2008] NSWSC 540 at [52]

 43   Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Antoun v R [2006] HCA 2, 80 ALJR 497, 224 ALR 51 at [30] per Kirby J

 44   [2000] HCA 63, 205 CLR 337

 45   Ibid at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ

 46   Ibid at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ

 47   CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 94 ALJR 140, 375 ALR 47 at [21] per Kiefel CJ and Gageler J

 48   Mitchell Shaw v Australia and New Zealand Banking Group Limited [2014] FWC 3408 at [15]-[17]; Obatoki v Mallee Track Health & Community Services [2015] FWCFB 1661, 249 IR 135 at [16]; Atkinson v Killarney Properties Pty Ltd & Palm [2015] FWCFB 6503 at [20]-[23]; Cox v Tweed Health for Everyone Pty Ltd [2018] FWCFB 3758 at [19]-[21]

 49   See RE G.C. [2014] FWC 6988, 246 IR 48 at [168]-[171]

 50   Appellants’ written submissions at first instance, 27 August 2019, paragraph 96(d)

 51   Transcript, 27 October 2020, PNs 464-470

 52   Ibid, PN 734

 53   [2021] FWC 951 at [16]

 54   Transcript, 18 February 2020, PNs 6753-6754

 55   Ibid, PN 6301

 56   [2021] FWC 951 at [107]

 57   Ibid at [25]

 58   CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 375 ALR 47 at [23]-[24] per Kiefel CJ and Gageler J

 59   Ibid at [59] per Gordon and Nettle JJ

 60   [1986] HCA 39, 161 CLR 342 at 351

 61   CFMMEU and ors v OS ACPM Pty Ltd and OS MCAP Pty Ltd [2020] FWCFB 2434, 296 IR 351 at [10], [62]

 62   [2021] FWC 951 at [17]

 63   Ibid at [25]

 64   Comcare v John Holland Rail Pty Ltd (No 3) [2011] FCA 164, 119 ALD 565 at [40]; Howell and Ors v Millais and Ors [2007] EWCA Civ 720 at [19]

 65   Barton v Walker [1979] 2 NSWLR 740; Bainton v Rajski (1992) 29 NSWLR 539; Parramatta Design and Development Pty Ltd v Concrete Pty Ltd [2005] FCAFC 138, 144 FCR 264 at [36]; Gabriel v Grech (No 4) [2020] NSWSC 726 at [2]; Polsen v Harrison [2021] NSWCA 23 at [40]; see also the Civil Trials Benchbook of the Judicial Commission of New South Wales at [1-0030]

 66   Macquarie Dictionary

 67   [2011] FCA 164, 119 ALD 565 at [49]

 68   John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34, 276 ALR 221 at [31]

 69   Antoun v R [2006] HCA 2, 80 ALJR 497, 224 ALR 51 at [29] per Kirby J

 70   Transcript, 27 October 2020, PNs 11-32

 71   Ibid, PNs 107-135

 72   Ibid, PNs 156-186

 73   Ibid, PNs 192-211

 74   Ibid, PNs 219-228

 75   Ibid, PNs 340-361

 76   [2021] FWC 951 at [4]

 77   Ibid at [43]-[44]

 78   Ibid at [50]

 79   Ibid at [59]

 80   Ibid at [112]

 81   Ibid at [122]

 82   Ibid at [123]-[127]

 83   Ibid at [128]-[131]

 84   Ibid at [141]

 85   Ibid at [144]

 86   Ibid at [152]

 87   Ibid at [169]

 88   Martin v Norton Rose Fulbright Australia (No 5) [2019] FCA 1481 at [39]

 89   Gas & Fuel Corporation Superannuation Fund v Saunders [1994] FCA 1237, 52 FCR 48 at 66D; Maragula v Northern Territory [2009] FCA 290, 175 FCR 333 at [33]-[34]; Comcare v John Holland Rail Pty Ltd (No 3) [2011] FCA 164, 119 ALD 565 at [49]

 90   CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 94 ALJR 140, 375 ALR 47 at [57] per Nettle and Gordon JJ, [132], [134] per Edelman J

 91   See ibid at [16] per Kiefel CJ and Gageler J, [54] per Nettle and Gordon JJ