Robertson v McDonald's Australia Limited (No 3)
[2023] ICQ 11
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- Unreported Judgment
- Robertson v McDonald's Australia Limited (No 3)[2023] ICQ 11
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Robertson v McDonald's Australia Limited (No 3)[2023] ICQ 11
Robertson v McDonald's Australia Limited (No 3)[2023] ICQ 11
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Robertson v McDonald’s Australia Limited (No 3) [2023] ICQ 011 |
PARTIES: | [REDACTED] ROBERTSON (appellant) v McDONALD’S AUSTRALIA LIMITED (respondent) |
FILE NO/S: | C/2023/15, C/2023/16, C/2023/17 |
PROCEEDING: | Appeal |
DELIVERED ON: | Orders made on 2 June 2023, reasons delivered on 5 June 2023 |
HEARING DATE: | 2 June 2023 |
MEMBER: | Davis J, President |
ORDERS: | In C/2023/15 appeal dismissed. In C/2023/16 appeal dismissed. In C/2023/17 appeal dismissed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – where the appellant claimed he was discriminated against by the respondent – where the appellant complained to the Human Rights Commissioner – where the Human Rights Commissioner referred the complaint to the Queensland Industrial Relations Commission (QIRC) – where the proceedings have been managed by a Deputy President of the QIRC – where the appellant alleged apprehended bias against the Deputy President – where the Deputy President made directions for him to hear the application alleging apprehended bias – where the Deputy President set the application down for hearing – where the Deputy President rejected a submission that the case should be adjourned pending decisions about legal assistance for the appellant through Legal Aid Queensland – where the appellant opposed oral submissions being received on the application – where the Deputy President ruled that oral submissions should be heard – where the appellant claimed that the Deputy President had made orders limiting the scope of his application – whether that was so – whether there was an error – whether the direction should be set aside Anti-Discrimination Act 1991, s 7, s 10, s 11, s 15 |
CASES: | Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, followed Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, followed House v The King (1936) 55 CLR 499, cited QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) HCA 15, cited Robertson v McDonald’s Australia Limited (No 5) [2023] QIRC 092, related |
COUNSEL: | Mr Robertson appeared for himself Ms Dearlove (solicitor) for the respondent |
SOLICITORS: | Mr Robertson appeared for himself Colin Biggers and Paisley for the respondent |
- [1]On 2 June 2023, I heard and dismissed three appeals.[1]
- [2]Mr Robertson is the complainant against the respondent, McDonald’s Australia Limited. He complained to the Queensland Human Rights Commission of age discrimination in the area of work.[2]
- [3]Pursuant to s 164A of the Anti-Discrimination Act 1991, the Human Rights Commission referred Mr Robertson’s complaint to the Queensland Industrial Relations Commission (QIRC).
- [4]The referral was accepted by the Industrial Registrar on 16 February 2021 and became matter AD/2021/7.
- [5]In the period of over two years during which the QIRC has been seized of the referral, there have been many interlocutory proceedings.
- [6]On 9 December 2022, Deputy President Merrell made directions with a view to hearing a number of interlocutory applications made by Mr Robertson. The Deputy President planned to hear those applications on 14 February 2023.
- [7]On 30 January 2023, various applications and appeals in the referral came before me. It became apparent on that occasion that Mr Robertson alleged apprehended bias against Deputy President Merrell.
- [8]It is well-established that an application for disqualification based on apprehended bias ought to be firstly made to the judicial officer against whom the apprehension is said to arise.[3] This has been very recently affirmed by the High Court in a case where the Court considered how an application of apprehended bias ought to be determined where the relevant judge was one judge sitting on a intermediate court of appeal.[4]
- [9]In order to facilitate Mr Robertson’s intended application, I made the following orders on 30 January 2023:
“1. Stay the orders made by Deputy President Merrell.
- List the matter before Deputy President Merrell to make directions as to the filing and conduct of the application that he will recuse himself for apprehended bias.”
- [10]The matter then came back before Deputy President Merrell on 8 May 2023. After hearing argument, the Deputy President made directions and set the matter down for hearing. The orders made were:
“1. That the Complainant file in the Industrial Registry and serve on the Respondent, written submissions in support of the Recusal Application, of no more than five (5) pages in length, type-written, line and a-half spaced, 12-point font size and with numbered paragraphs and numbered pages, by 4.00pm on Monday, 22 May 2023.
- That the Respondent file in the Industrial Registry and serve on the Complainant, written submissions in response to the Recusal Application, of no more than five (5) pages in length, type-written, line and a-half spaced, 12-point font size and with numbered paragraphs and numbered pages, by 4.00pm on Monday, 5 June 2023.
- That the Recusal Application be heard before Deputy President Merrell, at the Queensland Industrial Relations Commission, Central Plaza 2, 66 Eagle Street (Cnr Elizabeth and Creek Streets), Brisbane at 10.00am on Friday, 23 June 2023.
- [11]
The first appeal C/2023/15
- [12]By this appeal, Mr Robertson sought the following orders:
“That the determination not to stay the matter pending L.A.Q Five Month plus review of the refused legal advice be overturned.
That the determination that matters be heard orally set down for 23/6/23 be overturned.”[6]
- [13]His grounds of appeal were:
“That the applicant has exhausted all known options as to specilized legal advice related to A.D 2021/7.
That the applicant is refused legal; advice from the Three most central providers.
That the applicant is refused repeatedly legal advice where the apoplicant declines statistically based questions improperly mandated as to be answers, for example Aboriginality ? country of birth?
Where repeatedly the maximum access by number that is Once has been reached.
Where community lega; advice centres are not appropriately trained as to the A.D where the more earthy needs of the community have its understood precidence.
Where L.A.Q refuse legal advice, where the refuse improperly and based on management and budgetary limits this conflicting with the states responsibilty not have /permit discrimination.
Where the legal industry has little , essentially NO interest in the matter.
Where matters are so convoluted and delayled the matter is disctincity unattractive.
That the ONE and ONLY option as to specialist advice is L.A.Q there is no known option.
Where the right to a fair anmd prompt trial has been violated s 15 1‑4 Q.H.R act and further violated with no reasonable access to legal advice.
Where the right to access to public office has been violated where the Attorney general Shannon Fentiman ignores a sought (considered) direction to L.A.Q as to review timefrmae limits (there is no limit presently), where the multiple offices/officers interfer with communication as to the sought direction. violated s 23 1 2 (a)(b) where potientially the A/G is compromised , possibly by the actions of others within the department , potientially the responsibilty maybe thiers alone.
31 (1) Q.H.R act is vilolated by the determinations.
Of oral hearing the commission, and the respondent are by uncommunicativbe in the extreme by way of comparison to the applicant.
Where parties choose , prefer to be uncommunicative it is not to be at the applicant’s detreiment.
Where currently it is.
where the immedicacy of an Oral hearing favours the respondent of whom have used not less thjan 6 lawyers and a barrister (rather more is near certain ) and the Deputy, of whom , on balance maybe considered to detest the applicant, the applicant would have this as being needless.
Where the applicant is a S.R.L with no reasonable access to legal advice commensurate with the complexity and importance of the matters before the Q.I.R.C , deputy”
- [14]On 8 May 2023, there was the following exchange between the Deputy President and Mr Robertson:
“MR ROBERTSON: There’s a difficulty in - in either, which we haven’t addressed in - in this mention as whether Legal Aid Queensland still haven’t made a determination relating to the review of where they have the position of refusing legal advice. So, on the basis that Legal Aid Queensland refused advice and - and that position may be changed, it remains that I - I’m at a disadvantage, and considerable disadvantage. So either - either way, it presents us to some difficulty in what the court’s wants are in to the - as to the lack of access to legal advice - - -
HIS HONOUR: Well - - -
MR ROBERTSON: - - - and how that might affect.
HIS HONOUR: Well, I’ve previously ruled on those types of submissions, Mr Robertson, and I’ve said in - in past interlocutory decisions that I’ve made, that given the length of time this matter has been on foot and given that there’s no indication as to whether or not Legal Aid is going to make this decision that you refer to in the near future, I’m not minded to adjourn your - or to put off you - making orders for you to file submissions about apprehended bias, so I’m not minded to do that.
However, I’m - I’m happy if - if it’s the course you wish to pursue, for you to make written submissions about why I should recuse myself on the grounds of apprehended bias, for Ms Dearlove to make those submissions, and that I’ll make my determination about whether or not I should recuse myself on the grounds of apprehended bias on the papers. Is that a course of action you are comfortable with?
MR ROBERTSON: No. Legal Aid Queensland has no option other than to at some point make a determination, essentially, and thus far it’s been over five months. I consider that inappropriate and certainly unprofessional to the degree that updates won’t be shared as was the stated position, do not share updates. I’m not comfortable with the lack of access to legal advice and, if the court is or isn’t, that’s a matter for the court, But while I’m at a detriment for the lack of it, I’m not comfortable with either position and the position where it’s not considered what - why it is appropriate [indistinct] I told for the lack of legal advice has not been of - of benefit to - to anybody, bar the respondent.
HIS HONOUR: Well, as I’ve said in the past, Mr Robertson, I’m not prepared to put matters off on the basis of a decision that Legal Aid Queensland may or may not make in relation to your application to be legally - to be provided with any aid from Legal Aid Queensland. Mr Roberson, I propose to make these directions, that I’ll give you a week to file and serve written submissions in support of your oral application for me to recuse myself on the grounds of apprehended bias, and if I gave you until next Monday the 15th of May, is that enough time?”[7]
- [15]Mr Robertson returned to the issue of legal aid later in the argument and this exchange occurred:
“MR ROBERTSON: I’d seek to make another oral application.
HIS HONOUR: What’s that?
MR ROBERTSON: That, in the absence of Legal Aid Queensland making a determination before, and reasonably before the - my position is sought and made within the statement that, in the absence of legal advice that the QIR - - -
HIS HONOUR: I refuse that application, Mr Robertson, for grounds that I’ve given in other interlocutory decisions that I’ve made, notably in relation to the interlocutory decision I made on the 14th of February 2023 in Robertson v McDonald’s Australia Limited (No. 5) recorded at 2023 QIRC 092, namely - namely that your complaint was first referred to this Commission on the 16th of February 2021. I said in that decision:
The resources of the Commission are not infinite. It’s in the public interests that ...
your
... complaint be ultimately determined as soon as is reasonably possible. There are ... other applicants...who want their matters heard and determined. The continual delay in finalising ...
your
... complaint affects those applicants having their matters heard and determined. In addition, McDonald’s has the right to have its application heard and determined in an expeditious way -
namely its application to strike out your complaint. And I said in that decision, your
unresolved complaint with ...
Legal Aid Queensland
…is not a basis for any further delay in determining ...
your complaint. So, I’m giving those same reasons, Mr Robertson, in not granting a stay or an adjournment in relation to your application that I recuse myself on grounds of apprehended bias. Anything further from you, Mr Robertson? Mr Robertson?”[8]
- [16]It can be seen in the exchange that Deputy President Merrell considered that the substance of Mr Robertson’s application had been decided against him on an earlier occasion. The Deputy President effectively then affirmed his earlier decision.[9] The Deputy President was correct to so find.
- [17]By application filed on 19 January 2023, Mr Robertson applied for a stay pending final determination of his application for legal assistance. On 14 February 2023, that application was heard by Deputy President Merrell and dismissed.[10]
- [18]In dismissing the earlier application, the Deputy President observed:
“[21] Also, as I have stated, it is not the function of the Commission to provide litigants with funding to obtain private legal advice. Whether or not LAQ is going to provide Mr Robertson with legal advice is a matter between it and Mr Robertson. Given the stage of Mr Robertson’s complaint, I will not adjourn any proceeding in relation to his complaint pending any decision made by the LAQ about whether or not it will provide Mr Robertson with advice in relation to his complaint. Indeed, on the material before me, the present situation between Mr Robertson and LAQ is that he has made a complaint to it, a complaint which is pending, and that it has not provided him with further legal advice. As I understand his submissions, Mr Robertson has sought the intervention of the Attorney-General in relation to his complaint with LAQ.
[22] Mr Robertson’s complaint was first referred to this Commission on 16 February 2021, almost two years ago. The resources of the Commission are not infinite. It is in the public interest that Mr Robertson’s complaint be ultimately determined as soon as is reasonably possible. There are many other applicants in matters before this Commission who want their matters heard and determined. The continual delay in finalising Mr Robertson’s complaint affects those applicants having their matters heard and determined. In addition, McDonald’s has the right to have its application heard and determined in an expeditious way. Mr Robertson’s unresolved complaint with LAQ is not a basis for any further delay in determining Mr Robertson’s complaint.”
- [19]There is no suggestion of any change in circumstances. The Deputy President’s earlier decision and his decision on 8 May 2023 were both made in exercise of judicial discretion and there is no relevant error[11] identified.
- [20]In his appeal, Mr Robertson also complains of the Deputy President’s decision to hear oral submissions.
- [21]On that topic, the Deputy President ruled:
“HIS HONOUR: Thank you. And then what I propose to do is at - as a - consistent with past practice that I’ve adopted in relation to all the various applications and matters involving Mr Robertson and McDonald’s, I will hear the matter - I’ll hear any further oral submissions from the parties at 10 am on Wednesday the 7th of June 2023. I’ll give leave for the parties to participate in that hearing by telephone, so there won’t be a personal appearance required. So, Mr Robertson, I’m giving you what - what you want. You want to make submissions to me - sorry, I’II start again.
I’ll waive any requirement that you file a formal application that I recuse myself on grounds of apprehended bias. I’m happy to take it that you’ve made that application by way of an oral application. I’ll direct that you file and serve written submissions in support of your application that I recuse myself on grounds of apprehended bias by 4 pm on Monday the 22nd of May 2023. McDonald’s is to file its submissions in response to Mr Robertson’s submissions by 4 pm on Monday the 5th of June 2023. And then I will hear any further submissions from the parties at 10 am on Wednesday the 7th of June 2023.
Again, the reason that I’m holding the hearing is so that I can be sure that I’ve understood - understand and have heard fully from Mr Robertson and also McDonald’s about Mr - Mr Robertson’s application that I recuse myself on grounds of apprehended bias. I’ll issue a direction for - - -”[12]
- [22]The Deputy President’s ruling that there be an oral hearing has an impact in two ways:
- an opportunity is given to Mr Robertson to make oral submissions; and
- an opportunity is given to McDonald’s to make oral submissions.
- [23]It can hardly be that Mr Robertson is disadvantaged by being given the opportunity to make oral submissions in support of his own application. As the Deputy President explained, the oral hearing is an opportunity to ensure that Mr Robertson’s submissions are fully understood. If Mr Robertson appears and wishes to make no oral submissions, he is entitled to take that stance.
- [24]It is difficult to see any basis upon which Mr Robertson could deny McDonald’s a right to make oral submissions. Mr Robertson has brought the application. Applications are usually dealt with in the QIRC on the basis of oral submissions made after the filing of written outlines of argument. The Deputy President has obligations to ensure that any hearing is fair.
- [25]The orders appealed are case management orders with which appellate courts are loathe to interfere except where substantial injustice is shown.[13]
- [26]No injustice to Mr Robertson is shown here.
- [27]For those reasons, I dismissed appeal C/2023/15.
The second appeal C/2023/16
- [28]By this appeal, Mr Robertson seeks the following orders:
“That the decision of the deputy Merrell of where the applicant is precluded from any other avenue as to the sought recusal of the deputy (limited only to apprehened bias ) be overturned.”
- [29]His grounds of appeal are:
“That earlier within events leave was granted by the President Davis to seek recusal on a broader basis , not limited to apprehended bias.
That there exists numerous and extensive options sought presented as to such errors and actions by the deputy as to be of the gravest concern.
To the degree the applicant is embarrassed to be assocaiated with events if not the entire case.
Where they are not responsible for the decline of matters where every other party is near silent by comparision.
Where for the lack of exploring such options the applicant is disadvanataged, and further embarressed.
Where the deputy erred in law as to the limit (1 ), AU/NZ Judicial code of conduct 4.1, 4.2 is offended, where for example the S.F.A where the deputy stated quote Deficent unquote where this matter had and has not been determined.
Where the deputy has considerable distaste for the applicant it is held.
Where the deputy is alledged as to engineer disadvanatge/s.
Where all parties are hostile save for the applicant.
Where the wholley foreign owned subsiduary (M.A.L) has in near all respects advanatge/s, note the use of Six Lawyers and a Barrister and the applicant has none.
Where the deputy has by way of example as to reckless and negligence refused repeatedly to stay the matter before them.
Not limited to the basis of a pending decisiopn (FIVE MONTHS PLUS) with the L.A.Q ,of which may have the applicant provided with legal advice,. currently refused by way of L.A.Q policy /practice (this is the subject of the review).
Where the applicant is disadvantaged by the near absolute lack of advice past less complex that the applicant is aware of.
Where community legal centres have little to no interest in events , where the legal fraternity even less, wherethe deputy is held to be licenced as to events.
Where juriprudence is offended.
Where duty of care , is offended.
Politcal involement is alledged it is in fact stated.
Political interference is alledged maladministration the deputy is aware of of at least some claims made in relation to said-same
Where the deputy is alledged as to be aware of politcal interest in events centrally if not soley distaste.
That there is or maybe political consideartions as to the absolute limit as to the basis of the sought recusal.
Where not less than Three attoreny generals are or where involved (however seen) as to a series of events that see yet the applicant without access to legal aid advice read politcal involment, ( where the deputy is aware of the inaction).I.E licensed.”
- [30]The grounds of appeal are quite insensible. During the hearing of the appeal, it appeared that Mr Robertson’s complaint was that he had been somehow limited as to the factors he could rely upon to seek to establish an apprehension of bias.
- [31]In Australia, a party need only establish apprehended bias rather than actual bias of a judicial officer.[14] It seems Mr Robertson wishes to raise numerous matters which he says show actual bias of the Deputy President against him.
- [32]There is no order made by the Deputy President limiting Mr Robertson’s application. Any evidence which Mr Robertson adduces which is relevant to the question of apprehended bias may be relied upon by him provided it is in some admissible form.
- [33]As there is no order against which this purported appeal has been filed, it is incompetent and for that reason was dismissed.
The third appeal C/2023/17
- [34]By this appeal, Mr Robertson seeks the following orders:
“That the matter be stayed pending a determination by the L.A.Q[15] as to a review of refused leagl advice to the applicant.
That pending the consideration (sought but unreplied to) the ‘new’ A/G direct L.A.Q to impose a limit on L.A.Q reviews of which the applicant has One as to the practice of refuseing advice past One or Two sessions of advice per case.”
- [35]His grounds of appeal are:
“That a determination should be made by both as the sought best practice outcomes.
Where for the lack of legal advice the applicant is disadvanatged carelessly as to engineered disadvantage by the commission and the state.
Where the lack of advice, conflicts with the efforts of the applicant as to have Section 454 of the I.R act respected and adhered to ...
Where the applicant is less than certain this will occur (for the lack of legal advice adds little to confidence ... ,)
Where the applicant has grave and abidding reservations as to the commission having earlier experiences .... as to parties and the commission,. more generally.”
- [36]This appeal is no more than a rehash of the matters raised by the first appeal C/2023/15. For the reasons explained for dismissing appeal C/2023/15, this appeal was also dismissed.
Conclusions
- [37]For the reasons explained, I dismissed all three appeals.
Footnotes
[1]C/2023/15, C/2023/16 and C/2023/17.
[2]Anti-Discrimination Act 1991, ss 7(f), 10, 11 and 15.
[3]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
[4]QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) HCA 15.
[5]C/2023/15, C/2023/16 and C/2023/17.
[6]All Mr Robertson’s documents are precisely replicated including obvious grammatical and typographical errors.
[7]T 1-4 to T 1-5.
[8]T 1-12 to T 1-13.
[9]Robertson v McDonald’s Australia Limited (No 5) [2023] QIRC 092.
[10]Robertson v McDonald’s Australia Limited (No 5) [2023] QIRC 092.
[11]House v The King (1936) 55 CLR 499.
[12]T 1-6.
[13]Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177.
[14]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
[15]A reference to Legal Aid Queensland.