FEDERAL COURT OF AUSTRALIA

Bellia v Commissioner of Fair Work Australia [2010] FCA 1426

THE COURT ORDERS THAT:

1.    The application for interlocutory relief is refused.

2.    The applicant pay the second respondent’s costs of the application.

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

1    On 13 December 2010, the applicant, Father Andrea Bellia, sought interlocutory relief restraining the first respondent, Commissioner Ryan of Fair Work Australia (“FWA”) from continuing to hear Father Bellia’s application before FWA, seeking a remedy in respect of his alleged unfair dismissal by the second respondent, Assisi Centre Inc (“Assisi”).

2    The Court refused Father Bellia’s application for interlocutory relief. Given the fact that the unfair dismissal hearing was to recommence in FWA at 9.00 am on 14 December 2010, the Court announced its orders and said that it would publish its reasons for making those orders as soon as reasonably practicable. What follows are the Court’s reasons for refusing to grant interlocutory relief.

Background Facts

3    The relevant background facts are not in dispute. The applicant is an ordained Melkite Catholic priest in the Eastern Catholic Church. Until early January 2010, Father Bellia was employed by Assisi to provide pastoral care to persons cared for by Assisi.

4    Father Bellia claims that, in 2006, he received oral permission from the Roman Catholic Archbishop of Melbourne, Archbishop Hart, to perform the Latin Mass. He says that he did so at Assisi for some years thereafter and at occasional masses held elsewhere.

5    Subsequent to Father Bellia’s dismissal and application to FWA, on 12 February 2010, the Vicar General of the Archbishop of Melbourne sent an email to a member of Assisi’s Board advising that Father Bellia had no permission to celebrate Mass in Latin.

6    On 7 December 2010, Father Bellia’s solicitor applied to Commissioner Ryan, seeking that a summons be issued to the Vicar General of the Catholic Archdiocese of Melbourne. The draft summons sought documents concerning Father Bellia between the Archdiocese and Assisi between 4 January 2010 and 12 February 2010.

7    In support of the application for the issue of a summons to produce the abovementioned documents, should they exist, the solicitors for Father Bellia set out the relevance of the material sought. The solicitors alleged that the withdrawal of Father Bellia’s permission to say the Latin Mass was solicited by Assisi. The solicitors further said that the issue of Father Bellia’s ability to say the Latin Mass was an important matter in any consideration of whether their client should be reinstated.

8    Commissioner Ryan refused the application to issue a subpoena directed to the Archdiocese to produce the documents referred to at [6] above. The Commissioner announced his decision at the commencement of the substantive hearing of the unfair dismissal application on 8 December 2010.

9    Commissioner Ryan stated that, after making his own inquiries, he was of the view that the Archdiocese was not empowered to give permission to Father Bellia to say the Mass in Latin. Therefore he concluded that the documents, if they existed, would not be relevant to any issue he had to decide in the application before him.

10    Counsel for Father Bellia complained that Commissioner Ryan thereby prevented their client from obtaining evidence to support his allegation that the withdrawal of his permission to say Latin Mass had been solicited by Assisi to defeat Father Bellia’s claim for reinstatement, should his dismissal be found to be unfair. Counsel further says this shows there is a reasonable apprehension of bias revealed in Commissioner Ryan’s refusal to issue the summons.

11    Counsel relies, in particular, on a passage in the transcript of the hearing before Commissioner Ryan on 8 December 2010, at PN27. There the Commissioner was referring to a document which he expected to receive from Bishop Darwish of the Melkite Catholic Church in Sydney concerning the ability of Father Bellia to say the Latin Mass.

12    At PN27, the Commissioner said:

Even if that document comes to light, I will make it available to the parties. I have identified the course of action that I have taken that has led me to this point. I will certainly have regard to any documents supplied to me by Bishop Darwish. However, it becomes an issue for the parties then to address me on whether or not I should treat those documents as proving anything, and considering that I have already indicated I will have regard to them, what regard I should have to them. I’m not going to put them out of my mind because I have started the chain of research or investigations that led me this far. It’s now up to the parties to then decide what they want to do and what they say I should or should not do with the information that I have got.

13    Reliance on that passage of transcript is misplaced. The correspondence to which the Commissioner’s comments applied was subsequently produced. It is material written in 2006 and has nothing to do with any complaint about solicitation of the withdrawal of Father Bellia’s right to say the Latin Mass. It concludes with a letter dated 22 February 2006, apparently from an official in the Melkite Catholic Church, refusing to allow Father Bellia “bi-ritual faculties”.

Consideration

14    It may well be that Commissioner Ryan erred in not allowing the summons to issue on the basis that it may have produced documents relevant to the solicitation issue. If the Commissioner erred in that respect it is not tantamount to him exhibiting bias. In any event, counsel for Assisi said that they would not oppose the issue of a summons directed to the Catholic Archdiocese dealing with the solicitation issue in respect of a reasonable period leading up to Father Bellia’s dismissal. It may well be that a broader summons should issue given that conduct designed to frustrate the remedy of reinstatement is relevant to events which post-date the dismissal. All this discussion serves to illustrate is, that Commissioner Ryan may have erred in refusing to issue the summons, but none of his conduct comes close to exhibiting to a fair minded reasonable observer that he has closed his mind to any issue relevant to the proceeding before him. If Father Bellia had a concern about the refusal to issue a summons to produce documents, the appropriate course would have been to seek permission under s 604 of the Fair Work Act 2009 (Cth) to appeal to a Full Bench of FWA.

15    Further, as all counsel accepted, it remains open to Father Bellia’s counsel before Commissioner Ryan to call for documents relevant to the solicitation issue when senior representatives of Assisi are giving their evidence.

16    For the reasons set out above, the Court considers that there is no serious issue to be tried on the question whether Commissioner Ryan should be restrained from further hearing the case before him on the ground of apprehended bias. Although actual bias is raised in the substantive application, no submission to support that claim was made on 13 December 2010. Had there been a serious issue to be tried, I would have found that the balance of convenience favoured the continuation of the hearing by Commissioner Ryan, given that two-thirds of the evidence before him had been completed by the time the application was heard. Further any issue that concerned Father Bellia, which the Commissioner decided adversely to him, could be addressed, if necessary, on appeal to a Full Bench of FWA.

Associate:

Dated:    17 December 2010