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Queensland v De Villiers ICQ 24
INDUSTRIAL COURT OF QUEENSLAND
State of Queensland v Alain D’Hotman De Villiers  ICQ 024
STATE OF QUEENSLAND
ALAIN D’HOTMAN DE VILLIERS
DELIVERED EX TEMPORE ON:
3 November 2016
3 November 2016
Martin J, President
INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the Vice President of the Queensland Industrial Relations Commission (the Commission) signed an “Attendance Notice for Production and to give Evidence” on the application of a party – where the Attendance Notice was directed at the production of documents and the giving of evidence in relation to complaints made against the Vice President – where the respondent sought to bring an oral application that the Vice President recuse herself for apprehended bias – where the Vice President refused to hear the application unless it was filed in writing with supporting material – where the appellant and the party the subject of the notice supported the respondent’s recusal application but were unable to convey this to the Commission – where the Vice President adjourned the hearing of the matter until the recusal application was brought in writing with supporting material – where the appellant appeals the Vice President’s decision – whether the Vice President erred in law by refusing to hear the application without further technicality and legal forms, contrary to s 320(2)(a) of the Industrial Relations Act 1999 – whether the Vice President failed to afford the appellant procedural fairness by not allowing it to be heard on whether the recusal matter ought to be heard instanter – whether the Vice President erred in law in failing to recuse herself
Industrial Relations Act 1999, s 248(1)(d), s 264(2), s 320(2)(a), s 326, s 329(1)
Judicial Review Act 1999, s 41
Bainton v Rajski (1992) 29 NSWLR 539, cited
Barton and v Walker (1979) 2 NSWLR 740, cited
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, applied
Kartinyeri v The Commonwealth (No 2) (1998) 72 ALJR 1334, applied
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427, cited
Parramatta Design & Developments v Concrete Proprietary Limited (2005) 144 FCR 264, cited
J M Horton QC with C Murdoch instructed by Crown Law for the appellant
The respondent provided written submissions but did not appear
HIS HONOUR: Mr De Villiers has commenced reinstatement proceedings against the State of Queensland. He had been employed in the Office of Industrial Relations until his employment was terminated pursuant to a decision made by Dr Simon Blackwood. Dr Blackwood will be an important witness in the hearing when it commences.
The application for reinstatement was assigned to the Vice-President and listed for hearing for five days starting on the 31st of October this year. On or about the 26th of October, the lawyers for Mr De Villiers applied for the issue of an “Attendance Notice for Production and to give Evidence”. The Vice President signed that notice on the 26th of October this year.
The notice requires production of identified documents. They are set out in the schedule to the notice and read:
- “(1)original or copies of all documents showing Simon Blackwood’s involvement in responding to any complaint or complaints made by any person or persons [‘the complainant(s)’] about or involving Queensland Industrial Relation [sic] Commission Vice President Diane Linnane relating to the behaviour or conduct of the Vice President towards the complainant(s) in the previous five (5) years;
- (2)original or copies of all documents relating to the appointment of an investigator or investigators with respect to any such complaint or complaints mentioned in item (1) of this schedule;
- (3)original or copies of all documents setting out the Terms of Reference of any investigation or investigations with respect to any such complaint or complaints mentioned in item 1 of this schedule;
- (4)original or copies of any report or reports, interim or otherwise, arising out of any such investigation or investigations mentioned in item 3 of this schedule.”
One need only read those paragraphs to immediately realise the close involvement of the Vice President in the documents sought.
On the 31st of October this year, the matter came on before the Vice President. Mr Watson of counsel appeared for the applicant, Mr De Villiers. Mr C. Murdoch of counsel appeared for the respondent State of Queensland, and Mr Horton of Queen’s Counsel sought to appear for Dr Blackwood. Mr Horton announced his appearance as being for “a person who has received a notice for attendance.” The transcript records that the Vice President said:
“Well, we’ll hear that first up, then.”
Mr Watson then interjected and said that there was an application that the Vice President stand aside. Without hearing any submissions from any party, the Vice President said:
“Mr Watson, I will not accept an oral application in that regard. I will only accept a formal written application, and I’m not hearing that without a formal application. So you can make all the applications you like orally, but you’ve had plenty of time to put that in formally.”
The Vice President then said that she would hear the “attendance matter”, because she assumed that, before making his application, Mr Watson would need the attendance matters, by which I infer her Honour meant any documents which might be produced. Mr Watson said he did not need them. Her Honour then said:
“Okay. Well, we’ll adjourn now. You make your formal application, and I’ll hear that when I receive a formal application. So I’ll adjourn.”
There was then a brief exchange with Mr Watson, and her Honour said:
“Mr Watson, I will not hear an application to recuse myself without a formal application here, with all the supporting documentation attached to it. Thank you. So if that’s the way we’re going, I adjourn.”
Neither Mr Horton QC nor Mr Murdoch are recorded as saying anything else. They were not invited to make a submission. The entire hearing is recorded as taking about two minutes.
The State of Queensland appeals against what I will call, for the purposes of these reasons, that decision. The grounds are that the Vice President:
- “(1)declined, contrary to s 320(2)(a) of the Industrial Relations Act 1999 (Qld), to hear without further technicality and legal forms, and instanter, an application for her recusal;
- (2)denied the State procedural fairness by not permitting it an opportunity to be heard on the decision whether or not her Honour ought hear the recusal application instanter;
- (3)erred in failing, instanter and on the material then before her Honour, to recuse herself, in that adopting any contrary course was to commit an error of law (including by giving rise to a reasonable apprehension of bias) and to have acted in excess of jurisdiction.”
It should be noted that the Vice President did not dismiss any application; rather, she adjourned Mr Watson’s application (and Mr De Villiers’ application) and, by inference, the application that was to be made by Mr Horton, and said that nothing would be heard unless there was a formal application for recusal with supporting material. Clearly, the matter was not disposed of.
The appellant wants this Court to set aside the adjournment, hear the application, and grant it. The difficulty that arises, which I discussed with Mr Horton, is that the decision was simply to adjourn and nothing more. However, Mr Horton submitted that these were unusual circumstances, and that it was open to this Court to make an order of the type sought.
I considered whether it might have been possible to seek prerogative relief, which this Court may afford under section 248(1)(d) of the Industrial Relations Act 1999. Although section 41 of the Judicial Review Act 1999 provides that the Supreme Court may no longer issue prerogative writs, that Court, and, thus, this Court, can make orders in the nature of those writs. In this case, an application for an order in the nature of mandamus should not have been made because of the circumstances involving the Attendance Notice.
A large part of the written submissions concerns the level of formality necessary for the bringing of an application that a Member of the Commission recuse him- or herself. Given the circumstances and the desirability of this matter being determined quickly, I will not examine the authorities in detail. It is sufficient to note that there is a line of decisions at intermediate appellate level to the effect that the issue of whether a Judge should disqualify him- or herself is ordinarily raised in an informal way. Those decisions include Barton and v Walker (1979) 2 NSWLR 740; Bainton v Rajski (1992) 29 NSWLR 539; and Parramatta Design & Developments v Concrete Proprietary Limited (2005) 144 FCR 264. There are single-judge decisions to the contrary, but they merely emphasise that this rule is of a general character and subject to exceptions.
I do note, though, that Justice Callinan, in Kartinyeri v The Commonwealth (No 2) (1998) 72 ALJR 1334 said, on an application that he should disqualify himself:
“No formal motion has been filed or is necessary.”
Although a Member of the Commission may give directions for the conduct of such an application, under section 326 or section 329(1) of the Industrial Relations Act, it should only be in exceptional circumstances that such a process is undertaken. Section 320(2) of the Industrial Relations Act provides that:
“In proceedings, the commission ... is not bound by technicalities, legal forms or rules of evidence.”
If it needs to be said, that section makes it clear that it is open to the Commission to deal with such an application in an informal way, which, as has been emphasised in many authorities, is the appropriate way. In the Commission, parties can expect that they may make such applications in an informal matter, and should be received by the Commission and dealt with in such a way.
In this case, both parties agreed that her Honour should recuse herself. Although such agreement does not mandate the result, it is an important consideration. Unfortunately, due to the way in which her Honour conducted the hearing, this was not made known to her.
The test which is ordinarily applied when an accusation of bias is raised is that which was set out by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, and it is to this effect: that the test to be applied in Australia in determining whether a Judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
I note also that it was argued that the appellant was in a position where it needed to bring this appeal; otherwise, it might be found to have waived any rights it had. Authority for that can be found in many places, including Michael Wilson & Partners v Nicholls (2011) 244 CLR 427, where the plurality said that when an application that a Judge not try a proceeding is refused, the applicant who fails to challenge that refusal, by seeking leave to appeal, may be held to have waived that right, depending on whether such failure was reasonable in the circumstances, including the stage the proceedings had reached.
Now, of course, in this case, the application for recusal was not refused; it was simply not dealt with. It was argued by Mr Horton that the basis for his case is the mere fact that her Honour issued the attendance notice. I agree. The issuing of the attendance notice is sufficient, in my view, to raise, in the eyes of a fair-minded lay observer, the reasonable apprehension referred to in Ebner.
The issuing of that notice made it clear that the Vice President could not then deal with the notice in any way, as she is named in that notice. She is ineluctably involved in the matters raised by the notice, and, by the nature of those matters, a similar reasonable apprehension is raised with respect to the substantive matter. Such must be the case where Dr Blackwood is to give evidence.
As I said to counsel, it is, I think, important that this matter be dealt with quickly, and, therefore, I have not been able to set out in detail all the relevant matters and case law. But I think it fair to say that where a Member of the Commission issues an Attendance Notice which seeks documents relating to that Member of the Commission, then the Member of the Commission can no longer deal with that notice, and, in this case, where those documents relate to interaction between the Member of the Commission and an important witness for one of the parties, then the necessary ground for establishing apprehended bias has clearly been made out.
I propose to allow the appeal, and to exercise the power I have under section 264(2), and determine that the Vice President is not to constitute the Commission for the purposes of this application by Mr De Villiers, and I will direct that the matter be mentioned by Deputy President O'Connor on Monday, at a time suitable to the parties.
- Published Case Name:
State of Queensland v Alain D'Hotman De Villiers
- Shortened Case Name:
Queensland v De Villiers
 ICQ 24
03 Nov 2016