Robertson v McDonald's Australia Limited
[2023] ICQ 27
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- Unreported Judgment
- Robertson v McDonald's Australia Limited[2023] ICQ 27
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Robertson v McDonald's Australia Limited[2023] ICQ 27
Robertson v McDonald's Australia Limited[2023] ICQ 27
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Robertson v McDonald's Australia Limited [2023] ICQ 27 |
PARTIES: | Robertson, B (Appellant) v McDonald's Australia Limited (Respondent) |
CASE NOS.: | C/2023/29 C/2023/31 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 21 November 2023 |
MEMBER: | Hartigan DP |
HEARD AT: | On the papers |
ORDER: | The application is dismissed. |
CATCHWORDS: | COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – where the appellant claimed they were discriminated against by the respondent – subsequent applications in existing proceedings filed in the Court for various orders – recusal application – allegation of actual bias – consideration of applicable principles to determine if actual bias established – actual bias not established – consideration of applicable principles to determine if apprehension of bias established – apprehension of bias not established – application in existing proceedings dismissed |
CASES: | Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Jia v Minister of Immigration Affairs (1998) 84 FCR 87 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427; 86 ALJR 14; 282 ALR 685. Parbery & Ors v QNI Metals Pty Ltd & Ors [2018] QSC 213 Robertson v Queensland Farm Management and Training Pty Ltd [2022] QIRC 220 Robertson v Queensland Farm Management and Training Pty Ltd (No 2) [2022] QIRC 365 |
Reasons for Decision
Introduction
- [1]The Appellant has filed two appeals[1] with respect to a decision of the Queensland Industrial Relations Commission ('the Commission').[2] The Appellant has subsequently filed an application seeking that I recuse myself from hearing and determining the appeals ('the recusal application'). This decision is in respect of the recusal application.
Procedural matters
- [2]Before addressing the substance of the recusal application, there are several procedural matters that I will address to place the recusal application in context.
- [3]On 22 August 2023, directions were issued with respect to the recusal application as follows:
…
DIRECTIONS ORDER (2)
AFTER READING the Application filed in the Industrial Registry on 15 August 2023, IT IS ORDERED:-
- That the Appellant file in the Industrial Registry and serve on the Respondent written submissions of not more than 10 pages in support of the Application by 4:00 pm on 5 September 2023.
- That the Respondent file in the Industrial Registry and serve on the Appellant written submissions in reply of not more than 10 pages by 4:00 pm on 19 September 2023.
- That the Appellant file in the Industrial Registry and serve on the Respondent any written submissions in reply of not more than 10 pages by 4:00 pm on 3 October 2023.
- That the matter be heard before Deputy President Hartigan, at the Industrial Court of Queensland, Level 21, Central Plaza 2, 66 Eagle Street (corner Elizabeth and Creek Streets) Brisbane on 24 October 2023 at commencing 10.00am. [3]
…
- [4]On 30 August 2023, the appeals were listed for mention and directions were issued with respect to the other applications as follows:
…
DIRECTIONS ORDER (3)
FOLLOWING the mention on 30 August 2023 and the Respondent's request to be legally represented, IT IS ORDERED:-
- That the Respondent file in the Industrial Registry and serve on the Appellant, an application for legal representation, written submissions (of no more than 5 pages) and any affidavit material in support of the application by 4:00 pm on 4 September 2023.
- That the Appellant file in the Industrial Registry and serve on the Respondent, written submissions (of not more than 5 pages) and any affidavit material in support of the Appellant's position in reply by 4:00 pm on 11 September 2023..
- That unless any party files an application for leave to make oral submissions or further written submissions by 12 noon on Thursday, 14 September 2023, the matter will be heard on the papers.
…
DIRECTIONS ORDER (4)
FOLLOWING the mention on 30 August 2023 and the Appellant's request that the proceedings be stayed, IT IS ORDERED:-
- That the Appellant file in the Industrial Registry and serve on the Respondent, an application for the matter be stayed, written submissions (of not more than 10 pages) and any affidavit material in support of the application by 4:00 pm on 8 September 2023.
- That the Respondent file in the Industrial Registry and serve on the Appellant, written submissions in reply (of not more than 10 pages) and any affidavit material in reply by 4:00 pm on 15 September 2023.
- That unless any party files an application for leave to make oral submissions or further written submissions or request that the matter be heard orally by 12 noon on Tuesday, 19 September 2023, the matter will be heard on the papers.
…
- [5]These directions were issued having regard to the date of the hearing with the purpose of finalising the interlocutory application before the hearing of the appeal.[4]
- [6]However, following the issuing of these directions the Appellant emailed the Industrial Registry an amended application[5] which sought that the oral application to have the matter stayed, pending obtaining Legal Aid, be withdrawn. Further, the Appellant sought to withdraw their oral application to obtain data from the Respondent. The relief sought from the Appellant in their amended application is set out in the following terms:
…
(1).
That the oral application to have the matter stayed pending obtaining legal aid be withdrawn and as such the direction/s order issued related to the matter is vacated.
(2).
That the oral application as to obtain data from the respondent is withdrawn and as such the directions order issued related to the matter is vacated.
…
- [7]Accordingly, the appeals were listed for mention on 7 September 2023 to hear from the Appellant with respect to the amended application. Following the mention, orders[6] were issued granting the Appellant leave to withdraw their stay application. Further directions[7] were also issued requiring the parties to file submissions with respect to the attendance notice to produce objection.
- [8]However, and despite the steps taken above, on 19 September 2023, the Appellant again sought to stay the appeals as follows:
…
I seek leave that the Deputy Hartigan stay both matters and directions , till the applicant has access to legal advice comensurate [sic] to the complexity and breath of matters.
Where L.A.Q will not reply to efforts to obtain advice.
Thus unreliable .
Where there is refused advice , where what advice is (or maybe available ) is a single session ( which Two matters by way of submissions as to appeals ) can not reasonably be achieved for there are or will be X amount of pages (60 ?) of which present as not feasible to assist with within an Hour ) Leave is sought to apply for.the stay in email form.
Leave is sought all directions are vacated pending the deacions [sic] as to recusal.
Leave is sought for a direction order that local government [sic] permit access to non library member (the applicant ) plus the waiving of time limits (subject to the applicant sharing ).
Leave is sought that the matters be stayed pending the decision as to recusal of.the [sic] Deputy. Signed electronically Applicant.
…
- [9]The appeals were listed for mention on 4 October 2023 to address the process associated with the determination of the interlocutory applications and in particular to determine the agreed order that the Court should deal with the interlocutory applications as well as the Appellant's further request to stay the matter while they sought legal advice. That is, relevantly whether the directions issued with respect to the legal representation and the objection to the attendance notice to produce be vacated in order to deal with the recusal application and whether the recusal application be dealt with before the application for a stay.
- [10]The Respondent consented to the recusal application being dealt with before the other interlocutory matters.
- [11]During the mention, the Appellant expressed a reluctance to agree that the recusal application be dealt with first. A reason nominated by the Appellant for their reluctance to agree to that course was on the basis that they stated they had taken a step with respect to seeking legal advice. Accordingly, the matter was adjourned until 18 October 2023 to allow the Appellant an opportunity to seek legal advice and to be in a position to indicate their position about the hearing of the recusal application at that mention.
- [12]At the conclusion of the mention on 4 October 2023, I indicated that:
And to that end, at the mention - at the next mention, I do expect the appellant to provide a firm view in relation to the manner in which the application should be dealt with. I’ll hear from the appellant on that occasion but, as I’ve indicated several times today, to my mind, given the appellant’s concern with my involvement in the matter, the application for a recusal should be dealt with before any other application. But, as I’ve said, there have been multiple applications that have sought alternative relief, including, for instance, that all matters be stayed, which would include, for instance, the matter involving the recusal application. So that’s why I’ve asked the appellant to turn their mind to that.[8]
- [13]On 11 October 2023, the Appellant filed a further interlocutory application, which really took the form of a written communication in the matter, and was in the following terms:
…
That the mention or as understood set down on or about 18/10/23 be vacated.
Where the applicant nominates in written form that the recusal application of the deputy as the One the applicant seeks " first " determined.
That the determination of which be provided to parties in written form , where the applicant does not have "ID" that permits transcripts being made available.
- [14]Upon receipt of this communication, the mention listed on 18 October 2023 was vacated in order for the recusal application to be dealt with on the papers.
- [15]As noted above, directions had been issued on 22 August 2023 requiring the parties to file written submissions with respect to the Appellant's application. Directions Order (2) required the Appellant to file and serve written submissions by 5 September 2023.[9]
- [16]The Appellant sent email correspondence to the Industrial Registry and the Respondent which are taken to be his written submissions. However, instead of providing a written submission in reply, the Appellant emailed various versions of the written submissions on 23 September 2023, 25 September 2023, 26 September 2023 (re: Ombudsman sent at 7.06am), 26 September 2023 sent at 7.23am, 1 October 2023 and 25 October 2023 (in addition to the original submissions filed on 11 September 2023).
- [17]The submissions emailed on 25 September 2023, 26 September 2023 at 7.23am, and 1 October 2023 and 25 October 2023 appear to be largely in the same terms. However, on further review the submission of 1 October 2023 and 25 October 2023 appears to refer to several additional matters although they are largely in the same terms as the earlier submissions.
- [18]The written submissions of 26 September 2023[10] are distinct in so far as they deal with fresh matters regarding a complaint the Appellant allegedly made to the Ombudsman. The Appellant's submissions are as follows:
…
I seek leave this email is entered into papers .
As to the recusal sought of Hartigan.
The alledged [sic] parlour spineless Ombudsmans [sic] office reply being indicative(sic) of the lack of oversight options.
To and including Davis of who's job it is and the deafing [sic] silence as to the conduct of Hartigan and Associate Hartigan.
Official misconduct and corruption alleged.
Where Hartigan illegally ,( s 140 attempt to pervert justice) Abuse of office 92 a .
came to know the contents of a privledged [sic] document/s sourced from a Duncan Grant Mc Cartney ,a dubious lawyer of whom attempted to pervert justice s 140 by providing(sic) the documemt [sic].
Davis is alleged(sic) by assigning Hartigan to the appeals as to attempt to pervert justice Abuse of office, failed duty of care, recklessness, bad faith, malice , Official.misconduct [sic] and corruption [sic].
Note the idiocacy [sic] of the ombudsmans [sic] office as to legal aid advice with the presumption legal aid actually functions to a legal as to assist with judicial misconduct.
…
- [19]The purpose of the direction to file written submissions is to provide the parties with an opportunity to be heard. The filing of multiple submissions by the Appellant does not accord with the directions and does a disservice to both the Appellant and the Respondent insofar as the Appellant has provided submissions in a disjointed and inefficient manner to which the Respondent and the Court must have regard.
- [20]Such a course is ordinarily to be strongly discouraged as it does not accord with fair and efficient case management. However, in the interests of resolving this application without further delay I have considered the submissions filed by the Appellant.
The recusal application
- [21]The Appellant contends that I recuse myself from hearing the appeals. Whilst I summarise the issues raised by the Appellant further below, it is convenient to include, in full, the Appellant's grounds of the recusal application which are in the following terms:
…
Issues as to the now promoted Deputy President (D.P) Hartigan EXIST.
Parties have on balance chosen to (seek) to disregard the applicant and "rely" on the appeals process as to form judicial oversight.
Where Hartigan (D.P) has been demonstrably acted outside of the judicial sphere.
Extra judicial.Where [sic] there presiding , presents as to increased concerns from a considerable trepidation as to the I.C
Where issues already exist as to the I.C in the experience of the applicant .
Where the use of Deputy Hartigan is seen as most inappropriate and optional.
Where the Vice president has not presided on any matter related to the applicant .
Hartigan D.P has .
It was less that edifying as to involve illegality it is alledged [sic],by the Deputy ( then commissioner Hartigan ) and the lawyer appearing with and without leave (Mc Cartney )
Where bias and or apprehended bias are in a reasoned manner by the applicant as to exist , or on balance exist.
Where alledged [sic] Hostile member (from the meaning attached as to hostile witness is alledged [sic] this is relates to as far as I am aware the "truth and the unwillingness as to present it "
Where the various actions and inactions of the member within A.D 2022/6 Robertson V (Joseph Prestia trading as ) Queensland Farm Management and Training gives rise as to questioned competency , impartiality , independence, efficacy, probity and legality, the then member and the commision more generally.
Including but not limited to where ( it was and remains unexplained ) the then commissioner Hartigan permitted legal representation without leave for a time held as to be weeks .The lawyer offended r 530 I R act.
That member Hartigan permitted said same.
Where member (and Q.I.R.C ) knew the lawyer has no leave till later within events
Where the member was made aware (by the lawyer) as to a privileged document and where the member was aware of the contents of the document.
Where the privileged document contents where extrapolated as to be in excess by Hartigan (D.P )
Grant Mc Cartney used in appearing before the Q.I.R.C .
Where the member Hartigan failed to ensure that the lawyer appeared under a name as to provide transparency.
Where the member failed to protect the interests of justice.
For the lawyer is actually Duncan Grant Mc Cartney.
Where circa 2011 a Duncan Grant Mc Cartney pleaded guilty to Three offences according a online media report
the name for it is suggested as to mislead .namely as to avoid scrutiny as to (possibly) convictions
Where the member permitted hypocrisy ,where the basis (?) of the dismissal of the matter was as to the applicant's non compliance with an order as to state the reasoning as to non compliance with rules namely address (and name )
Where the member's actions as to the order was held as to be unconscionable ,contemptuous ,egregious ,and vile.
Where the applicant's issues (if any )as to accommodation by way of identifying an actual address was One of bad faith and by design.(seen before within the Q.I.R.C ) as to marginalised the applicant with a view (principally) to flick the applicant off , namely to see the matter dismissed which the order had ( for the applicants opposition as to the invasive and. "class" or lack of it by way of social ,confusion , distaste and disgust of the applicant generally.
Where the member incorrectly , improperly proposed in the dismissal A.D.2022/6 as to the court and paramount duty being protections as to excess.
Where neither was had to the degree required.
The contents of the document was was [sic] never intended for Hartigan .
The lawyer was permitted beyond good grace and efficiency as to rather more than was compliant with rules and Paramount duty .
Where the member indulged the lawyer Duncan Grant Mc Cartney , appearing as Grant Mc Cartney .
Mc the member /court (and lawyer) acted improperly.
Where both of these are unusual , where they are not ordinarily if ever permitted
Where the Member is held as to have acted in bad faith.
Violating s 14(b) (1)(2)(3). Crime and Misconduct act ,official misconduct
S 15 (a)(b)Corruption
S 140 , 369 ,.Malfeasance , misfeasance,, nonfeasance is alledged. [sic]
Where the member it is alleged to have stereotyped and profiled the applicant .
They did so in error and want.
Where the member wad appointment needlessly ( for the vice president should have been allocated to the appeal )
Where Hartigan acted unprofessionally as a commissioner .
Where now the member is (a) deputy ,despite .....such actions, where hmmmm is suggested.
Where the deputy does not have my confidence nor trust.
Where the Deputy )has chosen not to seek to reconcile her actions as to non compliance r 530 as to
as where she does not identify a loss.,disadvantage [sic]
Au /N.Z Judicial code of conduct 4.1 is violated ( where litigant's confidence.
Grave and abiding concerns remain of the deputy.
The deputy is know to have in safeguarding the applicant's absence of stated fixed address which rather dubious did and may again seek to profit.from. [sic]
…
- [22]For the purpose of the recusal application, I have summarised the Appellant's grounds into the following categories:
- The Appellant's complaints with respect to proceedings Robertson v Queensland Farm Management and Training Pty Ltd ('AD/2022/6') including with respect to:
- the conduct of the Respondent's ('QFMT')[11] representative in AD/2022/6 in delaying the application to seek leave to appear and allegedly relying on without prejudice correspondence in the proceeding; and
- the decision made by me to dismiss the proceedings.[12]
- [23]In raising these matters, the Appellant alleges that I acted, inter alia, improperly and in bad faith. It appears that the Appellant has formed this view arising from the Appellant's dissatisfaction with the process and outcome of the finalisation of unrelated proceedings, AD/2022/6.
- [24]The Appellant's dissatisfaction with the process and finalisation of AD/2022/6 is expanded on in the Appellant's written submissions. Whilst it is not expressly stated by the Appellant, it can be inferred that because of the nature of the allegations that they make about me that I will not exercise an impartial mind when hearing the appeals.
Legal principles
- [25]In Ebner v Official Trustee in Bankruptcy[13] the High Court held that apprehended bias will disqualify a judge from a case "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".[14]
- [26]The test to be applied for determining whether a judge should be disqualified for apprehended bias, the High Court held, requires the adoption of a two-step process:[15]
“First, it requires the identification of what is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.”
- [27]
…
- [31]The application of the test uses the touchstone of the “fair-minded lay observer” and that person’s reasonable apprehension. The law contemplates the following in the application of that test:
- The fair-minded lay observer has attributed to him or her awareness of and a fair understanding of the nature of the decision, the context in which it was made, and the circumstances leading up to the decision.
- The fair-minded lay observer has attributed to him or her knowledge that the judge is a professional lawyer, whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial, with the result that a conclusion that there is a reasonable apprehension that the judge might be biased should not be drawn lightly. The observer does not have attributed to him or her knowledge of the character or the ability of the particular judge concerned.
- The fair-minded lay observer does not have attributed to him or her a detailed knowledge of the law, but the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice, taking into account the exigencies of modern litigation.
- [32]What is required for justice to be seen to be done is that it must be apparent to the fair-minded lay observer that the judge will bring to the resolution of the issues an impartial and unprejudiced mind which will decide the issues according to their factual and legal merits. If such an observer might reasonably apprehend that the judge might not do that, then a case of apprehended bias is established. But if the possibility of such a reasonable apprehension does not exist, it will not suffice that there might be a reasonable apprehension that the judge will decide an issue or issues adversely to one party.
- [33]Although the test is expressed in terms of a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind, it is also clear that the law requires that proposition to be “firmly established” before the judge should disqualify himself or herself. In British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, Gummow J14 at [71] to [72] made this observation (footnotes omitted):
- [71]To that perception of the role of the hypothetical observer must be added the consideration that “the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party”. The words are those of Mason J in Re JRL; Ex parte CJL, in a passage adopted by Callinan J in Johnson v Johnson. Mason J also said in that passage, using words later said by the English Court of Appeal to have “great persuasive force”, and adopted by the New Zealand Court of Appeal:
“In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”
- [72]The references in JRL to the phrase “firmly established” in the joint reasons of all seven Justices of this Court in Angliss and to the subsequent authorities is important. …
- [34]The judge’s ordinary duty to sit unless convinced otherwise was also discussed in the earlier decision of Ebner v Offıcial Trustee in Bankruptcy (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [19] to [21]:
- [19]Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
- [20]This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
- [21]It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
- [35]So far as the law concerning disqualification for actual bias, it is necessary only to quote from Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, where Gleeson JA (Emmett JA and Tobias AJA agreeing) summarised the relevant principles as follows:
- [68]A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.
- [69]Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127].
- [70]As Gleeson CJ and Gummow J observed in that case at [71]:
“The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.”
- [71]In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.
- [72]His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded.
- [73]The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290:
“The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned.”
- [74]The circumstances in which actual bias can be demonstrated solely from the published reasons for decision must be considered to be rare and exceptional: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668 at [38] per von Doussa J, who explained:
“... Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party’s interests such as a hostile attitude throughout the hearing or ... an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.”
…
(citations omitted).
Consideration
- [28]As noted above, the Appellant raises concerns with respect to the conduct associated with and the finalisation of AD/2022/6. It should be noted for clarity, that whilst the Appellant was a party to that proceeding[18] the Respondent to this appeal was not a party, or in any way associated with, the Respondent in AD/2022/6.
- [29]The Appellant's submissions raise matters that were dealt with in the two decisions released in proceedings AD/2022/6.
- [30]The Appellant complains of the conduct of QFMT's legal representative in allegedly delaying to file an application to seek leave to appear as QFMT's legal representative and allegedly relying on without prejudice correspondence in the proceedings. It appears that the Appellant's complaint, relevantly, is that I permitted that conduct to occur.
- [31]The Appellant's submissions[19] and email on 25 October 2023 complains, inter alia, about the granting of leave for the Respondent to be legally represented and the conduct of the legal representative as follows:
…
That Hartigan then commissioner in A.D 2022/6 , had read to them by the associate or on the alternative read a privileged document or document/s.
That the document/s were marked "Without Prejudice".
Therefore Privileged.
Where the documents was provided by a lawyer appearing as "Grant Mc Cartney ".
Where enquiries with the Queensland Legal Services Commission confirm ,there is no Grant Mc Cartney licensed to practice in Queensland
There is a Duncan Mc Cartney that being "Duncan Grant McCartney " licensed to practice in Queensland.
Possibly One and the same of whom pleaded guilty to offences in New South Wales .
As to stamp duty "issues" $
Where the then commissioner ( and registrar M.Shelley whom has powers as to preclude improper communications ) oddly permitted without explanation the lawyer to do such an act.
Within the interlocutory process ,where there is little to NO call as to have done or permitted such actions.
Where Mc Cartney however sought to influence Hartigan (C).
Where this was not an unwelcome .
For Hartigan dislikes the applicant /their approach /efforts which to be clear are considerable.
Where the reader may benefit that effort is mostly to at times completely without access to legal advice.
Where Hartigan now promoted to ( D.P ) was swayed by the act as to the contents.. [sic] Were the contents were not her business .
Where she took offence at the offer and quantum of the offer from memory $10000.00 .
Where she (incorrectly) held the applicant was predatory or financially inspired .
Were reader may reflect on the financial cost to the applicant is as to events well into the Thousands.
The efforts are well the Hundreds of Hours.
To a degree this explains the (some) complexity as to issues.
Notwithstanding explained as the applicants want is a rather "cute" of an argument.
cheap and incorrect.
Where Hartigan (then C), sought by way of detriment to the applicant in opposition to the quantum.
Namely she by way of official misconduct s 14 Crime and Misconduct act ,deliberately sought to detriment the applicant, toward ,to and or including basing in part the dismissal on the offer of compromise ,offensive to her / them the legal process.
Which was the design of the ....lawyer Mc Cartney whatever his name,and [sic] his client possibly.
To be clear Mc Cartney is alleged [sic] to have mislead the court to his Christian name as to avoid due diligence /scrutiny.
Namely reading or having read to offer ,then sought to a greater or lesser degree as to thereafter impinge on the applicants.
To and including it is alledged [sic] violated 140 Qld Criminal code.
Attempt to pervert the course of justice.
Abuse of office s 92 a
were the associate and or President and or Registrar is alledged [sic] party to the events .
Where the then commissioner indulged Mc Cartney ,enabled [sic] Mc Cartney as to a direction order.
Where the direction order was by silent design invasive ,punitive as to be onerous.
Were the applicant was to provide an explanation WITH AFFIDAVIT as to the inability to satisfy "address".
Where the applicant knew No fixed address sufficed.
Were a public explanation with affidavit as to address was improper.
For the address used was and is legally a vagary .
There is no proper legal mechanism as to require an address past stating One does not in an conventional sense exist.
Where the lawyer whatever his name engaged in abuse of process.
…
- [32]
…
- [23]However, the level of complexity arises because of the manner in which the parties have pleaded their respective cases, including, the potential legal issues arising from the pleadings, which have been identified by the parties as including whether the Complainant has standing to bring the complaint and whether there is potentially scandalous material included in the Respondent's Response. In addition to that, the correspondence section of the court file is unusually large. I will address each of these matters further below.
…
- [26]The Complainant also criticises the Response filed by the Respondent for containing what is alleged to be scandalous material. Relevantly, the Response describes the complaint as an 'exercise of extortion'. The Response then refers to two communications from the Complainant to the Respondent, wherein, the Respondent alleges the Complainant sought a sum of money from the Respondent to withdraw the complaint. The Complainant objects to what is described by the Complainant as details of 'offers of compromise' made by the Complainant and the Complainant asserts that the Respondent's legal representative has offended the Australian Solicitors Conduct Rules in referring to the correspondence. The Respondent's legal representative submits that a resolution of the matter would include the contemplation of whether the correspondence was 'without prejudice' correspondence sent by the Complainant.
- [27]These matters are unable to be resolved in the context of this Application, although it is noted a further application has been filed by the Complainant touching upon, at least, some of these matters.
- [28]The allegations made by each of the parties against the other contain serious allegations as to each of the other parties' conduct which I consider adds to the complexity of the proceedings.
…
- [33]The Appellant's complaint of delay with respect to the filing of QFMT's application for legal representation is also dealt with in the reasons for the first decision as follows:[22]
…
- [43]The Complainant raises matters that I consider do not directly relate to the exercise of the discretion pursuant to s 530 of the IR Act.
- [44]These matters include a complaint that the Respondent's lawyer's name appears on the Response filed on behalf of the Respondent prior to the Application for leave to be legally represented being made.
- [45]The nature of the complaint made by the Complainant is that it appears that the Respondent's legal representative authored the Response prior to leave being granted. It appears that there was no attempt by the Respondent to hide that the author of the Response was its legal representative in circumstances where the Respondent had previously indicated that it intended to seek leave to be represented. The Complainant has not identified what prejudice, if any, has been suffered as a result of this step. I do not consider that any prejudice has arisen.
- [46]However, I do share the Complainant's concern as to the delay in the making of this Application, particularly after the correspondence sent by the Industrial Registry on 6 May 2022 and following the filing of the Response. As noted above, it is the Commission's expectation that the parties will endeavour to comply with the IR Rules in the future conduct of these proceedings to ensure the just and expeditious disposition of the matter.
…
- [34]The order issued in the first decision was in the following terms:
That leave be granted for the Respondent to be legally represented in these proceedings pursuant to s 530(4) of the Industrial Relations Act 2016 (Qld).
- [35]As can be seen from the extract of the reasons above, it was identified that there was a dispute between the parties in that proceeding in relation to QFMT's reliance and reference to correspondence in the Statement of Facts and Contentions and that the Appellant contended the correspondence was without prejudice correspondence and should not have been referred to by QFMT. As acknowledged in the reasons, that was a matter that was identified as a matter in issue in the proceedings and would be dealt with when the matter was ultimately heard.
- [36]Further, the extract of the reasons reveals that I acknowledged that there may have been delay in bringing the application by QFMT and that going forward I expected the parties to conduct themselves in a way that ensured the just and expeditious disposition of the matter.
- [37]The Appellant did not appeal the first decision.
- [38]With respect to the alleged "without prejudice correspondence" the Appellant does not acknowledge that it remained in dispute as to whether the documents referred to were indeed privileged. The reasons for the first decision identify that the alleged privileged status of the document remained in dispute and required determination during the hearing of the matter. However, the proceedings were dismissed at an interlocutory stage and prior to that matter being finally determined. Consequently, no findings were made as to whether or not the documents were privileged.
- [39]Further, the Appellant alleges, in an unsupported allegation, that I had regard to the without prejudice correspondence and consequently "held the applicant was predatory or financially impaired." No such finding was made or determined that supports such a contention.
- [40]The Appellant also appears aggrieved by my decision to grant leave for QFMT to be legally represented. The Appellant remains critical of the timing of QFMT's application for legal representation and asserts that such an application should have been made earlier.
- [41]Having identified the conduct relied on by the Appellant I must then consider the Appellant's articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on the merits of the matter.
- [42]Having reviewed the Appellant's submissions, I am satisfied that the Appellant does not articulate any logical connection between the conduct relied on relating to QFMT's legal representatives and my dealing with their alleged delay in bringing an application for leave to legally represent QFMT or QFMT's reliance on alleged without prejudice correspondence in AD/2022/6 and that the appeals may be a determined other than on their merit.
- [43]I am not satisfied that the Appellant has established apprehended bias with respect to the conduct associated with and the making of the first decision in AD/2022/6.
- [44]The second decision[23] arises out of an application made by QFMT seeking that the complaint be struck out.
- [45]QFMT contended that the Appellant[24] had failed to properly identify themselves by name and address and accordingly had failed to comply with the Industrial Relations (Tribunal) Rules 2011 (Qld) ('Tribunal Rules').
- [46]The Appellant's written submissions complain about the conduct and determination of that application as follows:
…
Where the( former Barrister ) Hartigan (D.P).,did or should not have directed as affidavit.
Note the affidavit impost was attempted by Hartigan AGAIN within C/2023/29 and or C/2023/31
.Where a submission and affidavit was directed to to [sic] where Legal aid Queensland refuse to provide legal advice.
Where the applicant [sic] is not of the mind to indulge the deputy, court or the respondent [sic].
Where the rather rude and self important impost presuposses [sic] the applicant unless they provide a affidavit is therefore lying [sic].
Which is curlish [sic] and rude .
The dishonesty is not with the apllicant [sic].
Where the matter as to address or lack of One is neither new ,( and increasingly obvious ) for many people have no actual address.
For reasons to and including political incompetence..
Where the actions the commissioner were and are considered to be egregious.
Where the member sought to "slut shame" the itinerant applicant as to a public explanation with an affidavit.
Corruption s 15 C.M.Act is alledged [sic] of Hartigan ( D.P).
Mc Donalds former corporate council.DID [sic] IN FACT SEEK to linkA.D 2022/6 to A.D 2021/7.
Were M.A.L lawyers referenced in court documents A.D 2022/6 .
THEY entered into documents as to the before the Deputy Merrell that there WAS A FINDING OF "NON COMPLIANCE ", within the dismissal of A.D 2022/6.
They DID LINK THEM.
They DID seek improperly legal advantage, for ( D.P )Hartigan's actions at best are questioned, ( far worse is stated ).
They where in part/s illegal and or improper.
They where very unusual.
They were dark
Note should the President be proposed as to have authority to deal with the administration
maladministration.
It is not the lived experience of the applicant.
For Tens of efforts where made of Years as to such powers.
NONE received written replies.
The president is alledged [sic] but not limited , to have violated s 92a 140, 541 Qld criminal
Where Merrell to a greater or lesser weighed Hartigans finding as to non compliance (address ).
Where Mc Donalds Aust Limited committed COLLATERAL ABUSE OF PROCESS.
Where they knew Hartigans actions where highly unusual ( as to be dubious?).
Were regardless and arguably because (for the legal dog whistling ) within the commission in opposition to a S.R.L of whom had Two A.D cases at One time.
Where S.R.L are on balance "more" work to the Q.I.R C.
Were the efforts of the applicant were, are considerable thus in part embarrassing the court for efforts not of the same or equal magnitude / complexity.
…
- [47]The matters in issue in the application were identified in the reasons for the second decision as follows:[25]
…
- [13]The information the Complainant has listed in documents filed in the Commission include the provision of their name as 'B. Robinson', an email address that does not include their name and a general domain name, relevantly '[redacted]@mail.com', and a mobile telephone number.
- [14]The referred complaint and subsequent documents filed by the Complainant in the proceedings do not include the Complainant's full name or address details.
- [15]Prior to the publication of the advertisement and the Complainant's subsequent objection to the information requested in the advertisement, which initiated the Complainant commencing these proceedings, the parties were unknown to each other.
- [16]The Complainant has never personally attended a conference, mention or hearing at the Commission, and has always requested to appear by telephone, including with respect to the hearing of this application.
- [17]The Respondent maintains that the identity of the Complainant is unknown to it.
- [18]The Respondent formalised its complaint with respect to the Complainant's failure to provide the details required by rr 12 and 13 of the Tribunal Rules by filing, on 12 July 2022, this application to strike out the proceedings.
- [19]The Commission listed the matter for mention and placed the Complainant on notice with respect to the requirements to provide any affidavit evidence and written submissions. Rule 12 of the Tribunal Rules was also brought to the Complainant's attention during the course of the mention. Following the mention, directions were subsequently issued requiring the Applicant to file any affidavit evidence and written submissions with respect to their response to the application.
- [20]As noted above, the Complainant did not produce or rely on any affidavit evidence at the hearing of the application. During the course of the oral submissions, the Complainant after objecting to the provision of the information required by the Tribunal Rules, the Complainant purported to provide, toward the end of the hearing, details with respect to their name. Relevantly, the Complainant stated:
I identify as Bruce Robertson.
- [21]It is unclear why the Complainant elected to use the words 'I Identify as…' as opposed to 'My full name is…' The choice of those words by the Complainant leaves open an inference, at least, that the Complainant has elected to use the name 'Bruce Robertson' rather than it actually being his name. Further, the Complainant stated that they were 'itinerant'. When pressed for an explanation as to the factual basis upon which the Complainant claimed itinerancy, the Complainant variously responded that:
…I don’t rent a house. I don't have access to structured accommodation in the vast to near complete time frame up to and including living on a daily basis in any direction I might choose or not…
- [22]It is difficult to comprehend precisely what the Complainant meant by the above submission. 'Itinerant' can have several possible meanings. It often is used to refer to someone who elects to travel from place to place. It is not suggested that it was intentional but much of the Complainant's oral submissions were unclear and opaque, and at times contradictory.
- [23]At the conclusion of the hearing the Complainant was given a further opportunity to provide written submission addressing the matters in question. The Complainant did not provide any further factual information to support the assertion that they are itinerant or any further information with respect to their location or address. Relevantly, the Complainant was given an opportunity to provide factual information with respect to his address details or the precise reasons why he could not comply with the Tribunal Rules to provide those details.
- [24]When it was put to the Complainant that the Complainant knows who the Respondent is, knows the Respondent's name, and knows the Respondent's address, the Complainant responded as follows:
I – I see. They have a larger priced island and they’re commercial – somewhat smaller priced island and not commercial.
…
- [48]The reasons for the second decision included the following:[26]
…
- [25]It is acknowledged that during the course of the hearing on 19 July 2022, the Complainant disclosed a name which they stated they identify by.
- [26]The Complainant claimed they were itinerant but failed to provide a direct factual basis for such a claim. Nor did the Complainant submit any information that could assist from a practical perspective with remedying their non-compliance with the Tribunal Rules. It is unknown where the Complainant can be located, including it is unknown if they are located in Queensland or some other geographical location. There are a number of potential consequences that follow from that. The most obvious being that currently there is no means for the Respondent to affect personal service on the Complainant.
- [27]As noted above, at the conclusion of the hearing the Complainant was provided a further opportunity to file material with respect to their claim of itinerancy. No information addressing the claimed itinerancy was filed by the Complainant. Consequently, the Complainant has failed to provide any sound, logical or cogent information that explains why they are of no fixed address nor have they proffered any further information which might enable the requirements of rr 12 and 13 of the Tribunal Rules to be complied with, or, at least, regularised.
…
- [49]I consequently issued orders in the following terms:
Pursuant to r 226(2)(f) of the Industrial Relations (Tribunal) Rules 2011 (Qld) the proceedings is struck out.
- [50]It appears that the Appellant's concerns arise out of the conduct of the case management associated with determining the second decision in AD/2022/6.
- [51]The Appellant maintains an objection that I required them to file and serve an affidavit to address factual matters in the hearing of the application to dismiss the proceedings. Such a direction is an ordinary and proper means for the Commission to receive evidence from parties.
- [52]In relation to the substance of the finding in the second decision, the Appellant appealed the second decision in AD/2022/6[27] and the appeal was dismissed.[28] The Appellant continues to attack the findings in this application. It is not appropriate to revisit the Appellant's attack on those findings in such circumstances.
- [53]I am satisfied that the Appellant has failed to articulate a logical connection between the conduct associated with and the determination of the second decision in AD/2022/6 and the fear that the appeals will not be decided on their merit.
- [54]Consequently, in all of the circumstances, I do not consider that a fair-minded observer might reasonably apprehend, for the reasons relied on by the Appellant, that I might not bring an impartial mind to the issues raised in the appeals.
- [55]Finally, it can be inferred from the Appellant's assertion as to my alleged, inter alia, misconduct and corrupt conduct arising from the case management and the first and second decisions in AD/2022/6 that the Appellant also alleges actual bias.
- [56]A determination as to actual bias in the form of prejudgment requires assessment of the state of mind of the judge in question, ordinarily on the basis of what the judge had said and done.[29] The onus of demonstrating actual bias lies upon the party asserting actual bias and it is a heavy onus.[30]
- [57]Having regard to the Appellant's contentions, I do not consider the conduct relied on by the Appellant including my conduct in the case management of AD/2022/6 or the issuing of the first and second decision in AD/2022/6 support a finding of actual bias.
- [58]I am satisfied that I will be able to, and will, fairly, objectively and impartially, deal with the Appeals.
- [59]Accordingly, I dismiss the Appellant's application that I recuse myself.
Order
- [60]I make the following order:
The application is dismissed.
Footnotes
[1] C/2023/29 and C/2023/31.
[2] Robertson v McDonald's Australia Limited (No. 8) [2023] QIRC 192.
[3]Amended Directions Order (3) issued on 6 September vacated order (4) of Directions Order (2) issued on 22 August 2023. The effect of Amended Directions Order (3) is that the recusal application be determined on the papers unless either party makes an application for leave to make oral submissions.
[4] Currently listed to be heard on 24 November 2023.
[5] 4 September 2023.
[6] Amended Further Directions Order (4) issued on 8 September 2023.
[7] Directions Order (5) issued on 8 September 2023.
[8] T1-11, ll 26- 35.
[9] The Appellant was subsequently granted an extension to file their submissions by 11 September 2023. See T1-11, l1 10 – 15 of mention dated 7 September 2023.
[10] Sent at 7.06am.
[11] Queensland Farms Management and Training Pty Ltd.
[12] Robertson v Queensland Farm Management and Training Pty Ltd (No 2) [2022] QIRC 365.
[13] (2000) 205 CLR 337.
[14] Ibid [6].
[15] Ibid [8].
[16] [2018] QSC 213.
[17] Ibid [31]–[35].
[18] The Appellant was the Complainant in AD/2022/6.
[19] C/2023/29 and C/2023/31 – Robertson v McDonald's Australia Limited.
[20] [2022] QIRC 220.
[21] Ibid [23], [26]–[28].
[22] Robertson v Queensland Farm Management [2022] QIRC 220, [43]–[46].
[23] Robertson v Queensland Farm Management and Training Pty Ltd (No 2) [2022] QIRC 365.
[24] The Complainant in those proceedings.
[25] Robertson v Queensland Farm Management and Training Pty Ltd (No 2) [2022] QIRC 365, [13]–[24].
[26] Robertson v Queensland Farm Management and Training Pty Ltd (No 2) [2022] QIRC 365, [25]–[27].
[27] C/2022/25.
[28] T1-18, l 6 in matter C/2022/25.
[29] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427; 86 ALJR 14; 282 ALR 685.
[30] Jia v Minister of Immigration Affairs (1998) 84 FCR 87, 106 (French J).