Robertson v McDonald's Australia Limited (No. 3)
[2022] QIRC 437
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- Unreported Judgment
- Robertson v McDonald's Australia Limited (No. 3)[2022] QIRC 437
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Robertson v McDonald's Australia Limited (No. 3)[2022] QIRC 437
Robertson v McDonald's Australia Limited (No. 3)[2022] QIRC 437
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Robertson v McDonald's Australia Limited (No. 3) [2022] QIRC 437 |
PARTIES: | Robertson, B (Complainant) v McDonald's Australia Limited (Respondent) |
CASE NO.: | AD/2021/7 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 12 October 2022 |
HEARING DATE: | 12 October 2022 |
MEMBER: HEARD AT: | Merrell DP Brisbane |
ORDERS: | The Complainant's Application in existing proceedings filed on 28 July 2022 is dismissed. |
CATCHWORDS: | HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION ON THE BASIS OF AGE – Complainant alleges age discrimination and the asking of unnecessary questions against the Respondent – subsequent applications in existing proceedings filed in the Commission 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 |
LEGISLATION: | Industrial Relations Act 2016, s 454 |
CASES: | Dunstan v Orr [2022] FCA 1006 Robertson v McDonald's Australia Limited [2022] ICQ 25 Robertson v McDonald's Australia Limited (No. 2) [2022] QIRC 373 Quach v New South Wales Civil and Administrative Tribunal [2022] NSWCA 176 |
APPEARANCES: | The Complainant on his own behalf. Ms L. Dearlove of Colins, Biggers & Paisley for the Respondent. |
Reasons for Decision (ex tempore)
Introduction and background
- [1]The background to the present matter is set out in paragraphs [1] to [8] in Robertson v McDonald's Australia Limited (No. 2)[1] ('Robertson No. 2'). These reasons should be read with those paragraphs of that decision.
- [2]These reasons for decision concern my determination of '… the 28 July application' as I have referred to it in Robertson No. 2.
- [3]By the 28 July application, Mr Robertson seeks an order that I recuse myself from this proceeding.
- [4]For the reasons that follow, I dismiss the 28 July application.
The 28 July application
- [5]Mr Robertson seeks an order that I recuse myself '… from any further involvement with the applicant and the matter.'
- [6]Mr Robertson, as best as I can discern from his written submissions filed on 2 September 2022 and from the oral submissions he made today, seems to allege that I am actually biased as opposed to their being a reasonable apprehension that I am biased.
- [7]Further, as best as I can make out from the grounds of the present application and from Mr Robertson's submissions, the basis for his application includes, in part, the interaction I had with Mr Robertson on 27 July 2022, when I was sitting as the Industrial Court of Queensland, after which I dismissed an application in existing proceedings Mr Robertson made to that Court. In that application, Mr Robertson sought an order that the Court direct McDonald's Australia Limited ('McDonald's') to comply with the Privacy Act 1988 (Cth).[2] Mr Robertson seems to suggest that actual bias arises because I challenged his submission, in that hearing, that s 454 of the Industrial Relations Act 2016 ('the IR Act') was a source of power for the Court to make an order to compel McDonald's to comply with the Privacy Act 1988 (Cth).
- [8]It also seems the basis for this application is the fact that, in that matter, I made an order dismissing Mr Robertson's application because the Court has no power to make an order to compel McDonald's to comply with the Privacy Act 1988 (Cth).[3]
- [9]In submissions made today, Mr Robertson relevantly submitted that:
- (a)another reason I should recuse myself is the decision I made in Robertson (No. 2), namely, that his present application and other applications in existing proceedings filed by him not be determined solely on the papers; and
- (b)I am proceeding to hear applications in existing proceedings made by him when he does not have legal representation.
- [10]Recently in Dunstan v Orr ('Dunstan'),[4] Wigney J set out the principles concerning actual bias. His Honour stated:
Actual bias
- Actual bias “exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant”: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134E (North J, citing Wannakuwattewa v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, North J, No VG451/1994, 24 June 1996)) and Singh v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Lockhart J, No 902/96, 18 October 1996). The question is not whether a decision-maker’s mind is blank, or whether there is an “absence of any predisposition or inclination for or against an argument or conclusion”; rather, the “state of mind described as bias in the form of prejudgment is one 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) 205 CLR 507; [2001] HCA 17 at [71]-[72] (Gleeson CJ and Gummow J); see also Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 at 576 (Dawson J).
- Actual bias is usually difficult to prove: Sun at 134F-134G. It is also an allegation that “is not to be made lightly”: Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424; [2001] FCA 565 at [79] (Stone J). It requires a subjective assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33]. A “finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach”: Sun at 127C (Burchett J). Courts have rarely found actual bias to exist, principally because “a reasonable apprehension of bias suffices to disqualify a judicial officer” and where “actual bias exists, reasonable apprehension of bias will also exist and, consequently, courts concerned with supervising the application of the requirements of natural justice have not had to go so far as to find actual bias”: Sun at 134F (North J).
- [11]The fact that in the Court hearing I challenged Mr Robertson's submission that s 454 of the IR Act was a source of power for the Court to make an order to compel McDonald's to comply with the Privacy Act 1988 (Cth), that I ruled against him on that submission and that, as a consequence, I dismissed his application to that Court, is not evidence that I have prejudged his discrimination complaint against McDonald's, or that I have acted with such partisanship or hostility as to show that I have made up my mind against him and that I am not open to persuasion in favour of Mr Robertson in that complaint.
- [12]There are two reasons for this.
- [13]First, the matter before me, when I was sitting as the Industrial Court of Queensland, and the order I made in that matter, did not involve Mr Robertson's discrimination complaint against McDonald's as referred to this Commission. It concerned a misconceived application seeking an order from that Court that McDonald's comply with the Privacy Act 1988 (Cth).
- [14]Secondly, s 454 of the IR Act is clearly not a source of power for the Court to make an order to compel McDonald's to comply with the Privacy Act 1988 (Cth). That section concerns a statutory command to the Queensland Industrial Relations Commission, a different tribunal to the Industrial Court of Queensland, that in exercising a power, the Commission must not allow discrimination in employment. The fact that I made a decision about that matter of law, which is clearly correct, does not demonstrate actual bias.
- [15]Similarly, the fact that I made the decision in Robertson (No. 2) that the present application and the other applications in existing proceedings made by Mr Robertson not be heard on the papers is not a reason, having regard to the authorities I have referred to above, that demonstrates actual bias.
- [16]Similarly, the fact that I am proceeding to hear and determine applications in existing proceedings made by Mr Robertson, indeed, applications made and pursued by him, in circumstances where he unfortunately has not had access to legal advice or has been unable to obtain legal representation, is not, having regard to the authorities I have referred to above, a basis to conclude that there is a demonstration of actual bias.
- [17]Although Mr Robertson does not allege apprehended bias, even if Mr Robertson did, that claim would not be made out for the same reasons I have just given.
- [18]In the recent decision of the New South Wales Court of Appeal in Quach v New South Wales Civil and Administrative Tribunal,[5] Gleeson JA stated:
Apprehended bias
- The test for apprehension of bias is objective. It does not require an assessment of the state of mind of the judge in question, as is necessary on an inquiry about actual bias. The test for recusal is whether a fair-minded lay person might reasonably consider that the judicial officer might not carry out their judicial functions with an impartial and unprejudiced mind.
- The application of the double “might” test requires two steps. First, identification of what it is said might lead the decisionmaker to decide a question other than on the merits of that question; and second, an articulation of the logical connection between the matter identified and the apprehended or feared deviation from the course of deciding the question other than on its merits.
- In considering the recusal application, I am mindful that it is the duty of a judicial officer to determine matters which come before the judge and not to withdraw unless there are reasons which require the judge to do so. As Mason J said in Re JRL; Ex parte CJL:
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.[6]
- [19]In Dunstan,[7] Wigney J referred to authority that stated, relevantly, that the fact that a judge has not accepted submissions, or has taken a view of evidence in a way that one of the litigants disagrees with or asserts is wrong in principle, is not enough to establish a reasonable apprehension of bias.
- [20]The fact that I ruled against Mr Robertson's submissions made to me, when I was sitting as the Industrial Court of Queensland, about a matter of law in an application not involving Mr Robertson's discrimination complaint against McDonald's as referred to this Commission, is not enough to establish a reasonable apprehension of bias.
- [21]Furthermore, the fact that I am proceeding to hear and determine applications in existing proceedings made by Mr Robertson, again, applications made and pursued by him, in circumstances where he has been unable to obtain legal representation, is not a basis upon which for me to conclude that there is a reasonable apprehension of bias.
- [22]In the 28 July application, Mr Robertson also sought an order that the President of the Court oversight my 'performance' in respect of the decision I made when sitting as the Court as referred to above. That application is misconceived. If Mr Robertson was of the view that my decision in that matter was wrong, then he had the option to appeal that decision. I am not aware of any such appeal.
- [23]The 28 July application lacks substance and is misconceived. The 28 July application is dismissed.
Conclusion
- [24]For the reasons I have given, I dismiss the 28 July application.
Order
- [25]I make the following order:
The Complainant's Application in existing proceedings filed on 28 July 2022 is dismissed.