Dallow v Queensland Police Service [2004] ICQ 36 (2004) 176 QGIG 69

28 May , 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 69 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission John Dennis Dallow AND Queensland Police Service (No C6 of 2004) PRESIDENT HALL 18 May 2004 DECISION This is an appeal against a decision of the Vice-President of the Queensland Industrial Relations Commission given on 9 January 2004 and now reported at 175 QGIG 234. There is no appearance by the Queensland Police Service. By consent of the parties the Attorney-General was given leave to appear by counsel as amicus curiae. By the amended application to appeal, the grounds of appeal are (1) ostensible bias and (2) breach of natural justice. When the appeal was called, Counsel for the appellant abandoned the second ground of appeal. Counsel was right to do so. Whatever adverse comment may be made, even about an isolated failure to disclose facts or circumstances which may be or are potentially disqualifying, such a failure is neither a breach of a duty to ensure procedural fairness nor a denial of the right to procedural fairness. In Clenae v. Australia and New Zealand Banking Corporation (2000) 205 CLR 337 at 360 paras [20] to [21] Gleeson C J, Mc Hugh, Gummow and Hayne J J observed: “70 It is, however, neither useful nor necessary to describe this practice in terms of rights and duties. At most, any ‘duty’ to disclose would be a duty of imperfect obligation. A failure to disclose is relevant (if at all) only because it may be said to cast some evidentiary light on the ultimate question of reasonable apprehension of bias (104). A failure to disclose has no other legal significance. In particular it does not, of itself, give a litigant any right to have the judge desist from further hearing the matter or to have the ultimate decision in the matter set aside for want of procedural fairness. 71 To describe the practice of making disclosure as a matter of right or duty may distract attention from the fundamental question to be answered which is whether the reasonable apprehension of bias test is established. That question will be litigated on appeal from the substantive decision in -- 1 of 3 -- 70 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 May, 2004 the matter or in proceedings for prohibition, certiorari or similar relief. Whatever the process which the person alleging reasonable apprehension of bias may adopt, there will, in those proceedings, be a full opportunity to make whatever case for disqualification of the judge the moving party can. Inquiring whether the moving party was denied some opportunity to make submissions on the question of disqualification to the judge in question is irrelevant. The question of disqualification can and will be litigated fully in the appeal or application for prerogative or like relief and no separate question of denial of procedural fairness could arise. The point can be illustrated by what happened in Clenae. The fact that the judge did not disclose his shareholding gives no different or additional right to the present appellants. All that they were denied by the fact that there was no disclosure was an opportunity to put an argument which we consider must fail.”. The circumstances said to give rise to a reasonable apprehension of bias was the Vice-President’s personal relationship with the Manager of the Queensland Police Service’s Health, Safety and Industrial Relations Branch. Reliance is placed on The Queen v. Watson; Ex parte Armstrong. (1976) 136 CLR 248 at 262 whereat Barwick C.J., Gibbs, Stephen and Mason JJ said: “The view that a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial, and that if a judge does sit in those circumstances prohibition will lie, is not only supported by the balance of authority as it now stands but is correct in principle.”. And at 264 whereat Their Honours said: “The question is not whether there was a real likelihood that Watson J. was biased. The question is whether it has been established that it might reasonably be suspected by fair-minded persons that the learned judge might not resolve the questions before him with a fair and unprejudiced mind.”. To those extracts, one may usefully add the discretion of the High Court in Livesey v. The New South Wales Bar Association (1983) 151 CLR 288 at 293 to 294. “The principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.”. That a personal relationship may found a case of ostensible bias is settled. In Webb v. The Queen (1994) 181 CLR 41 at 74 to 75 Deane J observed: “The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, given rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstances gives rise to the apprehension of bias.”. See also Ebner v. Official Trustee in Bankruptcy (2001) 205 CLR 337 at 348 to 349 [24] per Gleeson CJ, McHugh, Gummon and Hayne JJ. However, there must be a nexus between the personal relationship and the issue which the judicial officer is required to resolve; “Bias exists if the judge may not bring an impartial and unprejudiced mind to the resolution of the issues.”. Bienstein v. Bienstein (2003) 195 ALR 225 at 231 [30] (Full Court of High Court). The same point was more fully developed in Ebner v. Official Trustee in Bankruptcy, op. cit., at 350 [30] per Gleeson C J, McHugh, Gummon and Hayne JJ: “30 It is not only association with a party to litigation that may be incompatible with the appearance of impartiality. There may be a disqualifying association with a party’s lawyer, or a witness, or some other person concerned with the case. In each case, however, the question must be how it is said that the existence of the ‘association’ or ‘interest’ might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits. As has been pointed out earlier, unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies. Similarly, the base identification of an ‘association’ will not suffice to answer the relevant question. Having a mortgage with a bank, or knowing a party’s lawyer, may (and in many cases will) have no logical connection with the disposition of the case on its merits.”. In an earlier decision, Aussie Airlines Pty Limited v. Australia Airlines Pty Limited and Anor (1996) 135 ALR 753 at 761 Merkel J observed: “In my view the two cases again demonstrate the requirement for a cogent and rational link between the association and its capacity to influence the decision to be made in the particular case. It is the capacity of the association to influence the decision rather than the association as such that is disqualifying.”. Further, although one is concerned with the apprehensions of a reasonable bystander, one must proceed on the assumption that the bystander is informed; “The courts have reviewed the apprehension through the eyes of the hypothetical reasonable and fair minded but ‘informed’ ‘observer’.”. Aussie Airlines Pty Ltd v. Australian Airlines Pty Limited and Anor, ibid at 763 per Miskel J. In Johnson v. Johnson (2000) 201 CLR 488 at 507 to 508 Kirby J elaborated on the matter as follows: “52 There is no simple answer to the foregoing questions. As is usually the case when a fiction is adopted, the law endeavours to avoid precision. The nature of the fiction involved in this instance is illustrated by the many ways in which the hypothesised bystander is described. Phrases that have been used include the ‘lay observed’, ‘fair-minded observer’, ‘fair-minded, informed lay observer’, ‘fair-minded people’, ‘reasonable or fair-minded observer’, ‘reasonable and intelligent man’, the ‘parties or the public’, a ‘reasonable person’, or (as has sometimes been favoured in England and Canada) the somewhat quaint and circular phrase, a ‘right-minded’ person. Obviously, all that is involved in these formulae is a reminder to the adjudicator that, in deciding whether there is an apprehension of bias, it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public. It is their confidence that must be won and maintained. The public includes groups of people who are sensitive to the possibility of judicial bias. It must be remembered that, in contemporary Australia, the fictitious bystander is not necessarily a man nor necessarily of European ethnicity or other majority traits.”. (Footnotes omitted) See also S & M Motor Repairs Pty Ltd and Ors v. Caltex Oil (Australia) Pty Ltd and Anor (1988) 12 NSWLR 358 at 381 per Priestly and Clarke JJA. In the circumstances of the present case, an “informed” observer would have been aware that: -- 2 of 3 -- 28 May , 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 71 (1) The application before the Vice-President was an application under s. 53 of the Industrial Relations Act 1999, seeking an order for the payment of money in lieu of the grant of long service leave; (2) the Queensland Police Service was required to pay the money at some point without receiving labour in return; (3) the Queensland Police Service had informed the Commission in writing that the service “does not support or oppose the application” and had not appeared; (4) the Manager, said to be the other party to the relationship, had the role of deposing to the matter at (3) and exhibiting a record of service which was not contentious and facilitated the applicant’s case; and (5) the Manager had no pecuniary or other (known) interest in the application. It seems to me to be inevitable that a bystander so “informed” would conclude that neither the Queensland Police Service nor the Manager had any interest in the decision to be made, that there was no link between the relationship and the decision to be made and that the relationship had no capacity to influence the decision to be made by the Vice-President. Counsel for the appellant seeks to rely upon the absence of disclosure to support a conclusion that an “informed” bystander would have concluded that there was an unknown, indirect interest to protect. Such a submission is entirely predictable. The practice of full and transparent disclosure, without undue analysis of the issue whether the material to be disclosed may be potentially disqualifying, is designed (amongst other things) to forestall such suspicion. But it is suspicion and speculation and no more. What is required is cogency and rationality. Whilst the non-disclosure may be used in the evidentiary way in which counsel seeks to use it, See Industrial Magistrate Motor Repairs and Ors v. Caltex Oil (Australia Pty Ltd) and Anor, op. cit, at 374 per Kirby P, and Clenae v. Australian and New Zealand Banking Corporation (2000) 205 CLR 337 at 360 para [70] for Gleeson CJ McHugh, Gummon and Hayne JJ, it avails the appellant not at all. I dismiss the appeal. There is no issue about costs. Dated 18 May 2004. D.R. HALL, President. Appearances: Released: 18 May 2004 Mr. M. Smith of Counsel instructed by John Hodgens of Nicol Robinson Hallets for the Appellant. Mr. C. Murdoch of Counsel instructed by Crown Law for the Attorney- General as amicus curiae. -- 3 of 3 --