FEDERAL COURT OF AUSTRALIA

Bellia v Commissioner of Fair Work Australia [2010] FCA 1416

THE COURT ORDERS THAT:

1.    The oral application made on 10 December 2010 be refused.

2.    Costs be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

(Revised from transcript)

introduction

1    By an oral application made on 10 December 2010, Father Andrea Bellia (“the applicant”) seeks an interim injunction restraining Commissioner John Ryan of Fair Work Australia from further hearing an unfair dismissal proceeding, No U2010/5284, under the Australian Fair Work Act 2009 (Cth) (“the Act”) (“unfair dismissal proceeding”) until further order, or until the hearing and determination of the applicant’s foreshadowed application (to be filed in this Court) to restrain permanently the Commissioner from hearing the unfair dismissal proceeding by reason of apprehended bias (“permanent restraint application”). The permanent restraint application is returnable before Marshall J on 13 December 2010.

2    The present application was opposed by the respondent the Assisi Centre Inc (“Assisi Centre”), which is the respondent in the unfair dismissal proceeding and will be the second respondent to the permanent restraint application.

background

3    The hearing of the unfair dismissal proceeding commenced on Thursday, 9 December 2010 before Commissioner Ryan. On the morning of the second day of the hearing on Friday, 10 December 2010 (that is, today), senior counsel for the applicant applied to Commissioner Ryan, seeking that he cease to hear the matter by reason of apprehended bias. At 12 noon, Commissioner Ryan declined to recuse himself and stated that he would sit until 6.00pm and then adjourn to Tuesday, 14 December 2010. The hearing before Commissioner Ryan is currently in progress.

4    The background facts to the present application were undisputed. As set out in Father Bellia’s statement filed on 8 November 2010 in the unfair dismissal proceedings, he is a married Melkite Catholic priest with four children aged between two and 11, who, since September 2005, has been employed at the Assisi Centre (an aged care facility in Rosanna) as a senior pastoral care worker, for an estimated total remuneration of $95,000 gross per annum.

5    Father Bellia further stated that on 5 January 2010, Mr Staples, the Executive Director of the Assisi Centre, terminated his employment without giving a reason.

6    The relief sought by Father Bellia in the unfair dismissal proceeding is reinstatement. It is common ground that his authority to perform the Latin Mass may be relevant to his reinstatement.

7    On 12 February 2010, shortly after his dismissal, Father Bellia received an email from Bishop Tomlinson, the Catholic Vicar General of the Melbourne Archdiocese, advising him that he was not permitted to perform the Latin Mass.

8    On 7 December 2010, prior to the commencement of the hearing of the unfair dismissal proceeding before Commissioner Ryan, Father Bellia sought that several subpoenas be issued. The Commissioner refused to permit the issue of one of the subpoenas, which was a subpoena duces tecum directed to Bishop Tomlinson.

9    When the parties appeared before Commissioner Ryan on 9 December 2010 (yesterday), the Commissioner at the outset stated that he had declined to authorise the issue of the subpoena duces tecum to Bishop Tomlinson, as it could not, in his view, affect the question of whether Father Bellia could perform the Latin Mass. The Commissioner explained that he had made inquiries about Catholic and Melkite canon law on the internet, which led him to communicate with the Sydney offices of the head of the Melkite faith in Australia. As the Melkite Bishop was not available, the Commissioner discussed the matter with the Bishop’s secretary, who undertook to forward documents relevant to his inquiry to the Commissioner.

10    The Commissioner stated that he had had an “intuitive feel” that the Melbourne Archdiocese of the Catholic Church could not give a biritual faculty to permit a Melkite priest to perform the Latin Mass, which was confirmed by his internet searches. His conversation with the bishop’s secretary confirmed that, in the present case, an application for a biritual faculty had been made to the Melkite authorities, but was unsuccessful.

11    The Commissioner stated he had disclosed all his inquiries to the parties to afford procedural fairness. He stated that when the anticipated documents arrived, he would allow the parties to address them, but would not put them out of his mind.

12    When the applicant sought that Commissioner Ryan recuse himself by reason of apprehended bias, the Commissioner declined. He stated that he was hearing evidence, rather than determining the matter. Commissioner Ryan directed that the hearing before him, in which Father Bellia was to be crossexamined by the respondent’s counsel during the afternoon, should proceed.

THE PARTIES’ SUBMISSIONS

13    The applicant submitted that the matters disclosed by Commissioner Ryan’s on 9 December 2010 give rise to an apprehension of bias, and that the Commissioner’s hearing of the matter should be restrained pending the hearing and determination of the permanent restraint application.

14    Counsel for the applicant submitted that there was a serious question to be tried and the balance of convenience favoured the grant of interim relief.

15    Counsel for the applicant submitted that:

1.    On the basis of the above matters, there was a strong case of apprehended bias, as the subpoena directed to Bishop Tomlinson was aimed at ascertaining whether he had in any way acted at the behest of the employer, the Assissi Centre, yet Father Bellia was now precluded from calling relevant evidence from the Bishop.

2.    The Commissioner appeared to have reached a firm conclusion on a question relevant to the relief sought.

3.    If Father Bellia’s crossexamination continued, it would be a waste of time. Further, it was undesirable that the crossexamination should proceed while the jurisdiction of the Commission was “under a cloud”. Counsel conceded that there was otherwise no basis for complaint about the Commissioner’s conduct of the hearing, but submitted that the requirement to give evidence in such circumstances might require repetition and have an adverse impact on the witness.

16    Counsel for the respondent submitted that:

1.    On analysis, the applicant’s real complaint was the refusal to issue the subpoena duces tecum addressed to Bishop Tomlinson. That refusal was, however, appellable under s 604 of the Act. The appropriate course for an aggrieved person in a case of apprehension of bias, or indeed other complaints about a Commissioner, was to appeal under s 604 or to seek a stay under s 606 of the Act.

2.    Doubt attended the Court’s jurisdiction to grant the relief currently sought. While the respondent acknowledged that the Court had, in theory, original jurisdiction under s 39B of the Judiciary Act 1903 (Cth) which did not require remittal from the High Court, it required a basis for its exercise under the Act or the accrued jurisdiction of the court which, on the basis of dicta of Marshall J in Construction, Forestry, Mining and Energy Union v Yallourn Energy Pty Ltd (2000) 106 IR 234, may not arise in the present context.

3.    The applicant had delayed unduly in seeking interim relief. The matters relevant to the application were apparent on the morning of 9 December 2010 but the crossexamination of Father Bellia would now have already been completed.

4.    Moreover, while the remaining time for today’s hearing before the Commissioner was very short, it would be inappropriately wasted if the application to restrain the Commissioner did not succeed. Its continuation posed no significant prejudice with Father Bellia.

DISCUSSION

17    The principles relevant to the grant of interlocutory relief are well established and were recently affirmed by the High Court in Australia Broadcasting Corporation v O’Neill (2006) 227 CLR 57.

18    It is necessary to determine:

(a)    Whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief.

(b)    That the balance of convenience favours the grant of relief, as damages will not be an adequate remedy and the injury the plaintiff is likely to suffer if an injunction is refused outweighs the injury the defendant is likely to suffer if an injunction is granted. The two inquiries may be interrelated and it is not necessary to view them in isolation, as an apparently strong claim may influence a court to grant an injunction where the balance of convenience is fairly even.

19    Is there a serious question to be tried or a prima facie case that the plaintiff will be entitled to relief?

20    The principles of apprehended bias are well known. See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at 350, where the plurality stated that the question is whether 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 was required to decide – whether the alleged apprehended bias arose from interest, conduct, association, extraneous information or some other circumstance. In the present case, although the Commissioner stated that he would not put the documents out of his mind, he was, as the applicant conceded, entitled under s 590 of the Act to inform himself and he stated that he would hear the parties in relation to the relevant documents. Although the applicant’s principal concern apparently related to the subpoena, it was not unconnected to the matter the Commissioner had allegedly pre-judged. A detailed and comprehensive assessment of the plaintiff’s claim is, however, neither appropriate nor, in the present circumstances, possible.

21    The respondent has alleged that as doubt attends the court’s jurisdiction to grant relief and alternative avenues for complaint were available as there is no serious question to be tried. It is, however, unnecessary to resolve those issues in order to determine the current application. Assuming, in the applicant’s favour, that there is jurisdiction to grant the interim relief and that the applicant has a serious question to be tried in relation to the alleged apprehended bias (albeit it is difficult in the present circumstances to assess its strength), it remains necessary to address the balance of convenience.

22    In my opinion, the balance of convenience does not favour the grant of interim relief. The delay in applying for interim relief has rendered it almost (if not entirely) futile, as its chief object (the termination of Father Bellia’s crossexamination before a Commissioner whose partiality he challenges) is probably already complete or nearly so.

23    Further, given that this application commenced at 1.30pm and counsels’ submissions concluded at 2.45pm; the Commissioner had announced that he would conclude today’s hearing no later than 6.00pm; the Commissioner will not sit on Monday, 13 December 2010; and the permanent restraint application is returnable before Marshall J on Monday, 13 December 2010, the subject matter of this application is of extremely narrow compass, amounting at most to about three hours of hearing. The sole prejudice identified by the applicant was the waste of hearing time and repetition.

24    If the applicant succeeds in permanently restraining the Commissioner from hearing the unfair dismissal proceeding, the balance of today’s hearing time will be, as the applicant submitted, wasted, because the unfair dismissal proceeding will be heard by another Commissioner. Conversely, however, as the respondent submitted, if the interim relief is granted but the application to restrain the Commissioner is unsuccessful, hearing time in the Commission will have been thrown away unnecessarily. An application such as the present, whatever the interim disposition, will necessarily involve a risk of wasted hearing time. While every case must be determined on its facts, in my view, in a context where judicial officers should adopt a robust approach to applications to recuse themselves, the potential waste of a short amount of hearing time would rarely in itself constitute a sufficient basis for interim relief. As the plurality stated in Ebner at 348, “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.”

25    In the present case, the time potentially wasted before the return of the permanent restraint application is minimal, the crossexamination is probably completed, and the applicant identified no particular material or lasting prejudice (whether to his case or otherwise) should the hearing including the crossexamination before the Commissioner continue and in the event that his application permanently to restrain the Commissioner on the basis of apprehended bias is ultimately successful.

CONCLUSION

26    Therefore, in my opinion, the application made orally on 10 December 2010 should be refused.

Associate:

Dated:    15 December 2010