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  4. GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2) - [2022] ICQ 8

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GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2)[2022] ICQ 8

GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2)[2022] ICQ 8

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2) [2022] ICQ 008

PARTIES:

GJT EARTHMOVING PTY LTD

ACN 155 053 080

(appellant)

v

THE REGULATOR UNDER THE WORK HEALTH AND SAFETY ACT 2011

(respondent)

FILE NO/S:

C/2021/20

PROCEEDING:

Appeal

DELIVERED ON:

11 April 2022, ex tempore

HEARING DATE:

11 April 2022

MEMBER:

Davis J, President

ORDER/S:

The application that I recuse myself from hearing the appeal is dismissed

CATCHWORDS:

COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – REASONABLE APPREHENSION OF BIAS – where the judge, prior to appointment had been a member of the Australian Labor Party (ALP) – where the judge resigned membership of the ALP before being sworn in as a judge – where the ALP holds government in Queensland – where the respondent is a government instrumentality – where the appellant alleges an apprehension of bias by the judge in favour of the respondent – where the matter giving rise to the concern of bias is past political affiliation – whether there is a reasonable apprehension of bias

Work Health and Safety Act 2011

Thomas, Judicial Ethics in Australia, Third Edition, LexisNexis, Butterworths 2009

CASES:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, followed
GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2021] QIRC 306, related

APPEARANCES:

C Richards for the appellant

S R McLeod, QC directly instructed by C-L Godfrey for the respondent

  1. [1]
    The appellant, by its agent Mr Cameron Richards, made application this morning that I recuse myself from hearing the appeal against a decision of the Regulator under the Work Health and Safety Act 2011.
  2. [2]
    The respondent to the appeal submits that the application ought to be refused.
  3. [3]
    The appeal is from a decision of Vice President O'Connor.[1]  In essence, an inspector appointed under the Work Health and Safety Act 2011 issued an improvement notice to the appellant to remove asbestos from a particular site.  A review of that decision was heard by the Vice President.  The application for review was dismissed and the appellant appealed.  That appeal is the current proceeding.
  4. [4]
    The appeal came before me for hearing on 7 February 2022.  The appellant was then, like this morning, represented by its agent, Mr Richards.
  5. [5]
    It quickly became apparent that the appeal was not in a proper state to be heard and I adjourned the hearing, making directions so that the appeal could be properly prepared.
  6. [6]
    On 12 March 2022, an article appeared on the front page of the Courier Mail entitled “Long arm of Queensland Labor Inc:  Court of comrades”.
  7. [7]
    That article correctly recorded that:
  1. I was President of the Queensland Bar Association in 2014;
  2. I resigned in 2014 after the Liberal National Party government appointed the then Chief Magistrate, Timothy Carmody QC, as Chief Justice;
  3. in the 2015 State election, I was politically active supporting Mr Peter Russo, then the Australian Labor Party (ALP) candidate seeking election to the State seat of Sunnybank.  Mr Russo won the seat of Sunnybank and after a redistribution and two further elections now holds the seat of Toohey for the ALP;
  4. my involvement with Mr Russo’s election included assisting him in fundraising for the 2015 election and supporting booth workers on election day.
  1. [8]
    On 16 October 2017, I was sworn in as a judge of the Supreme Court of Queensland after my appointment was announced a couple of weeks earlier.  By the time I was sworn in, I had resigned as a member of the ALP and I am not now a member of the ALP or, for that matter, any other political party.  In 2020, I was appointed President of the Industrial Court of Queensland and the Queensland Industrial Relations Commission.
  2. [9]
    The application this morning followed an email sent to the Commission Registry on 8 April 2022.  That email was addressed to me and explained why I ought to recuse myself.  The email takes the form of a submission.
  3. [10]
    It is, in many ways, an extraordinary document.
  4. [11]
    In it, Mr Richards says that the appellant has a good case on his appeal and has been dealt with shabbily, both by the respondent and, at first instance, in the Commission.  He then says that the governing director of the appellant, Mr Jepson, has lost faith in the Commission and the Court.
  5. [12]
    The email says that the Courier Mail has named me “personally as having an apparent political conflict of interest”.  The article does not do that.  In fact, it accepts that all the appointments mentioned in the article were made on merit.  The email also points to Newscorp reports of an alleged integrity crisis within the Queensland government.  The email concludes with this passage:  “… Mr Jepson has asked me point out to you that the Courier Mail inquiry allegations against yourself are clearly a sufficient basis (a) for him to now not to have any confidence in any Aapeal decision by yourself (unless it is to dismiss the case against him as unreliable at the very least) and (b) to thus request that you stand aside from this appeal hearing if you are not prepared to at least recognise that the case against [the appellant] is unreliable …”.[2] The submission seems to be that I ought recuse myself unless of course I agree that the appellant’s case is compelling.
  6. [13]
    It is well-established by the High Court’s decision in Ebner v Official Trustee in Bankruptcy[3] that the consideration is an objective one, namely 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 that the judge is required to decide in the case.  That requires, firstly the identification of what it is said might lead the judge to decide the question otherwise than on its legal and factual merits, and secondly an articulation of a logical connection between that matter and the risk that the judge will decide the matter otherwise than on its legal and factual merits.
  7. [14]
    Here, what is said to be the reason why I might decide the case otherwise than on its legal and factual merits is the fact that over four years ago I was associated with the political party which now holds government in Queensland.  The logical connection between that matter and the risk that I would decide the matter otherwise than on its legal and factual merits, is more difficult to discern. 
  8. [15]
    Mr Richards, in his oral submissions, says that the appellant has been treated by the inspector and by others in the department in what I think he is saying is a dishonest and corrupt way.  He says that raises political concerns, and that then is relevant to the report in the Courier Mail which places me, before being sworn in as a judge in 2017, as being involved with the ALP.
  9. [16]
    The essence of the submission seems to be that as the respondent to the appeal is a government body, my past association with the political party that now forms the government means that in a contest between the appellant and the respondent, there is a risk that I will determine the matter other than on its merits.
  10. [17]
    Society is governed by laws.  Judges are lawyers.  Lawyers study the workings of society.  As educated people interested in the workings of society, many, and in my experience most, lawyers hold some political views.  Many are politically active in varying degrees.  Of course those political views vary.
  11. [18]
    The Honourable James Thomas AM, formerly a judge of the Court of Appeal of Queensland, in his highly respected text Judicial Ethics in Australia, Third Edition, LexisNexis, Butterworths 2009, says this of a judge’s political connections:

“After appointment a judge should not be an active member of any political party, should not fraternise with those in the echelons of political power and should not actively support causes which produce partisan reaction in the community. It would be improper for a judge to participate in a political party convention. As the divorce from political partisanship needs to be complete, a judge should resign from membership of any party. Continued silent membership could be seen as clandestine support.”

  1. [19]
    There is nothing prohibiting a person with political affiliations taking judicial office.  Chief Justice Latham, Chief Justice Barwick and Justice Murphy were all Commonwealth Attorneys-General and all three sat on the High Court.  Wanstall CJ and Connolly J both held seats in the Queensland Legislative Assembly before being appointed to the Supreme Court.  There are persons who have held seats in the Commonwealth Parliament and have gone on to be appointed to the Federal Court.  Examples exist from both sides of politics; Bowen CJ and Kerr J for instance. Justice Elliot Johnston was a communist activist and later a successful judge of the Supreme Court of South Australia.  All no doubt heard many cases where the government which appointed them was a party.
  2. [20]
    All judges are ultimately appointed by the Executive and some come from occupations within the government itself, eg Crown prosecutors, Solicitors General.  This has never been seen to suggest they should not hear cases concerning the government.
  3. [21]
    I have had no political connections since taking office.
  4. [22]
    No reasonable person would consider there is any risk through my former membership of or connection with the ALP, that I would decide a case about the issue of an improvement notice under the Work Health and Safety Act other than on its merits.
  5. [23]
    The application is dismissed, and I intend to hear the appeal.

Footnotes

[1] GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2021] QIRC 306.

[2] This is a direct quote, inclusive of typographical errors.

[3] (2000) 205 CLR 337 at 345.

Close

Editorial Notes

  • Published Case Name:

    GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2)

  • Shortened Case Name:

    GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2)

  • MNC:

    [2022] ICQ 8

  • Court:

    ICQ

  • Judge(s):

    Davis J

  • Date:

    11 Apr 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
2 citations
Jump To
Cite 1 - (2000) 205 CLR 337
Cite 2 - (2000) 205 CLR 337
GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2021] QIRC 306
2 citations
Jump To
Cite 1 - [2021] QIRC 306
Cite 2 - [2021] QIRC 306

Cases Citing

Case NameFull CitationFrequency
Gilbert v Metro North Hospital Health Service [2022] ICQ 353 citations
1

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