FEDERAL COURT OF AUSTRALIA

Dahler v Australian Capital Territory [2014] FCA 946

THE COURT ORDERS THAT:

1. The application for leave to appeal filed on 14 August 2014 be dismissed.

2. If CPM Reviews Pty Ltd intends to press its application for costs and if the respondents also seek costs, any such application be made in writing, supported by submissions no longer than two (2) pages, and filed and served within seven (7) days.

3. The applicant file any submissions in reply (not exceeding two (2) pages) within seven (7) days of being served with any such submissions.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Clinton Dahler is a former employee of the Australian Capital Territory (ACT) (a Disability Support Officer Grade 1), who was dismissed from his employment following an investigation into allegations of misconduct against him, an investigation which was outsourced to a company called CPM Reviews Pty Ltd (“CPM Reviews”). In an application filed in the Federal Circuit Court (fixed for hearing there later this month), he claims that the dismissal contravened the general protections provisions of the Fair Work Act 2009 (Cth) (“FW Act”).

2    On 21 July 2014 the primary judge heard a number of interlocutory applications. At the beginning of the hearing and without notice, Mr Dahler’s counsel, Ms Keys, made an oral application for the primary judge to recuse himself from the determination of the interlocutory applications and the final hearing. His Honour heard argument from the parties, and, in a reserved judgment delivered 10 days later, he found against Mr Dahler on the recusal application and each of the interlocutory applications: Dahler v Australian Capital Territory [2014] FCCA 1675. Mr Dahler now applies for leave to appeal from that judgment. For the following reasons that application should be dismissed. Before coming to those reasons, however, some context is necessary.

The substantive proceeding

3    The substantive proceeding is a claim that the dismissal constituted adverse action contrary to Pt 3-1 of the FW Act. It was preceded by an application in the Fair Work Commission (“FWC”) in which Mr Dahler alleged that he was dismissed by the “ACT Government as represented by the Community Services Directorate”. The ACT filed a response denying the allegations made in the application. A conference was conducted by the FWC on 25 July 2013 but the dispute could not be resolved and on the same day the FWC certified under s 369 of the FW Act (as it then stood) that it was satisfied that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful.

4    On 8 August 2013 Mr Dahler filed his application in the Circuit Court. He sought compensation of $115,000 and a pecuniary penalty of an unspecified amount. That application named two respondents: “ACT Government t/as Community Services Directorate” (said to be the employer) and CPM Reviews.

5    In the claim filed with the application, Mr Dahler alleged he was dismissed from his employment because he had participated in what was described as a “workplace behaviours” process under the Community Services Directorate Enterprise Agreement 2011–2013 (“the enterprise agreement”) and/or because of his responsibilities as a carer. The dismissal is alleged to be a contravention of s 340 of the FW Act in the first instance and s 351 of the FW Act in the second instance.

6    Section 340 proscribes the taking of “adverse action” by one person against another person because the other person has a workplace right; has, or has not, exercised a workplace right; or proposes, or proposes not to, or has or at any time proposed or proposed not to exercise a workplace right. The section also proscribes the taking of “adverse action” by one person to prevent the exercise by another person of a workplace right. “Workplace right” is defined in s 341 of the FW Act in four different ways. It relevantly provides:

Meaning of workplace right

(1)    A person has a workplace right if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

Meaning of process or proceedings under a workplace law or workplace instrument

(2)    Each of the following is a process or proceedings under a workplace law or workplace instrument:

(a)    a conference conducted or hearing held by the FWC;

(b)    court proceedings under a workplace law or workplace instrument;

(c)    protected industrial action;

(d)    a protected action ballot;

(e)    making, varying or terminating an enterprise agreement;

(f)    appointing, or terminating the appointment of, a bargaining representative;

(g)    making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

(h)    agreeing to cash out paid annual leave or paid personal/carer’s leave;

(i)    making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);

(j)    dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k)    any other process or proceedings under a workplace law or workplace instrument.

…

(Original emphasis.)

7    “Adverse action” is defined in s 342 to include (in item 1) an employer dismissing an employee.

8    Which aspect of ss 340 and 341 is invoked is unclear from the pleadings, but I was given to understand that Mr Dahler’s case is that his employer took adverse action by dismissing him because he participated in a process under a workplace instrument. I will return to this matter shortly.

9    Section 351(1) relevantly provides that an employer must not take adverse action against an employee because of the person’s “race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin” (emphasis added). Provision is made in s 351(2) for exemptions, including, relevantly, where the action is taken because of the inherent requirements of the particular position concerned.

10    If, in an application, it is alleged that a person took action for a particular reason and taking that action for that reason would constitute a contravention of Pt 3-1 of the Act, then it is presumed that the action was taken for that reason unless the person proves otherwise: FW Act, s 361.

11    Section 362 of the FW Act is also relevant. It provides:

(1)    If:

(a)    for a particular reason (the first person’s reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and

(b)    the action, if taken by the second person for the first person’s reason, would contravene a provision of this Part;

the first person is taken to have contravened the provision.

(2)    Subsection (1) does not limit section 550.

12    Section 550 provides that a person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. “Involved in” is defined in subs (2) to refer only to a situation in which the person has aided, abetted, counselled or procured the contravention, induced the contravention, been “in any way, by act or omission, directly or indirectly, knowingly concerned in or a party to the contravention” or conspired with others to effect the contravention.

13    According to the application filed in the Circuit Court, CPM Reviews conducted the “workplace behaviours” process under the enterprise agreement and, “for that reason advised or encouraged or incited” the employer to dismiss Mr Dahler from his employment in contravention of ss 340 and/or 351.

14    On 21 August 2013 the ACT Government Solicitor filed a response to the application in which the first respondent was named as “Australian Capital Territory as represented by the Community Services Directorate”. In that response the ACT made a number of admissions. Relevantly, it admitted that in 2012 and 2013 it arranged for Mr Dahler to “be the subject of a process under a workplace instrument, being a process of investigation into alleged misconduct under Part H of the [enterprise agreement]” and that it engaged CPM Reviews “to assist in the process by making inquiries into the allegations of misconduct and by providing a written report in relation to those inquiries”. It also admitted to having taken adverse action against Mr Dahler by terminating his employment on 30 May 2013. It pleaded that it took that action because it was satisfied that he had engaged in misconduct in his employment (involving several clients by showering them together, by using the same face washer on them and by trying to wash one client with a broom), because of the inherent requirements of the position (including treating clients with reasonable care and skill and with respect for their privacy and dignity) and because it considered the action necessary to maintain standards of service for the clients’ special needs. It denied that it took adverse action for any unlawful or prohibited reason.

15    In its response, filed on 16 September 2013, CPM Reviews denied that Mr Dahler had standing to bring the proceedings against it and noted that it had not been a “party to a conference required by s 368 of the [FW Act]”. It also denied that it conducted its investigation under the enterprise agreement or that it “advised or encouraged or incited [the ACT] to dismiss [Mr Dahler] from his employment”. Indeed, it alleged that it made no recommendations for any action to be taken by the ACT.

16    At the first return date, on 21 October 2013, the primary judge ordered that CPM Reviews be removed as a party. He provided reasons in an ex tempore decision with which I was not provided. In the affidavit Mr Dahler filed in support of his leave application, he stated that, at the time, the primary judge informed Ms Keys that she could “just join them later”.

17    There followed a dispute between the parties about the proper name of the first respondent.

18    On 4 November 2013 Ms Keys sent an email to Helen Banks, a senior solicitor with the ACT Government Solicitor, seeking “clarification about the First Respondent” and referring to the description of the first respondent in the notice of address for service and the response. Ms Keys pointed to the terms of s 795 of the FW Act, which provides that for the purposes of the Act and the procedural rules the employer of a public sector employee “must act only through the employee’s employing authority acting on behalf of the employer”. She noted that the employing authority in this case was the Chief Minister for the ACT, referring to reg 6.9 and Sch 6.3 item 14 of the Fair Work Regulations 2009 (Cth) and sought Ms Banks’s consent to an amendment to the name of the first respondent by substituting the Chief Minister.

19    On 7 November 2013 Ms Banks replied. She said that the ACT did not consent to the proposed amendment but that “it would be appropriate” to amend the name of the first respondent to “The Australian Capital Territory”. She pointed out that the ACT (established by s 7 of the Australian Capital Territory (Self-Government Act) 1988 (Cth) as a body politic under the Crown) is the employer of all members of the ACT Public Service: Public Sector Management Act 1994 (ACT), s 12(4).

20    On 2 December 2013 Mr Dahler filed an Application in a Case seeking leave to amend the statement of claim to substitute the ACT Minister for Community Services as the respondent. Mr Dahler swore an affidavit in support of that application which referred to the different ways in which the respondent had been named and the correspondence with the ACT Government Solicitor, which he annexed.

21    On 3 March 2014 Mr Dahler filed an application in this Court for an extension of time for leave to appeal and for leave to appeal from “the failure of Judge Neville of the Federal Circuit Court to give judgment in chambers on 17 December 2013”. The application itself was not before me but Foster J, who heard it, said that at its heart was a dispute about the proper name of the respondent, pointing out that the respondent contended for the “Australian Capital Territory” and Mr Dahler for the “Minister for Community Services of the Australian Capital Territory”: Dahler v ACT Government t/as Community Services Directorate [2014] FCA 210. His Honour resolved the dispute in a practical way by adding the Minister as a party. Although it was not reflected in his Honour’s order, it is clear that he was of the view that the Australian Capital Territory should also be named instead of the “ACT Government t/as Community Services Directorate”. He ordered that the application be dismissed on terms that the parties and the Minister consent to an order being made adding the Minister as a respondent. He further ordered that the costs of and incidental to the application be costs in the application in the court below.

22    In the meantime, the same day the application in this Court was filed, the primary judge ordered that the respondent’s name be changed to “Australian Capital Territory”. The order was made in chambers. No reasons were given but his Honour noted in a preamble to the order the following matters:

A.    By email dated 4 November 2013, the Applicant's Counsel advised the Respondent's lawyer that the Applicant's statement of claim should be finalised "within the next few days";

B.    No statement of claim has yet been filed in compliance with the Court's orders dated 2 December 2013;

C.    By email dated 7 November 2013, the Respondent's lawyer confirmed that (i) it was appropriate to amend the name of the Respondent, and (ii) the amended name should be the "Australian Capital Territory"; [and]

D.    Submissions filed by the Respondent on 16 December 2013 confirmed the name of the Respondent should be the "Australian Capital Territory”.

23    On 14 March 2014 Mr Dahler filed a statement of claim naming the Australian Capital Territory as the first respondent and the Minister for Community Services (ACT) as the second respondent. The same day he filed an Application in a Case seeking orders that the ACT and the Minister pay the costs of his December application and of his March application.

24    Five days later, on 18 March 2014, the ACT filed an Application in a Case seeking orders that paragraphs 1–6, 10–15, 18, 21–28 of the statement of claim be struck out and that the respondents have 14 days from service of any amended statement of claim to file and serve a defence or an amended defence. The grounds of the application were that paragraphs 1–3, 6, 8–9, 14–15, 18 and 21–28 were embarrassing, prolix and not in summary form and that paragraphs 1–5, 10–11, 12–13 and 21–28 do not allege material facts. Despite this, on 26 March 2014 the respondents filed a defence.

25    On 7 April 2014 Mr Dahler sought leave under r 11.02 of the Federal Circuit Court Rules 2001 (“Circuit Court Rules” or “FCCR”) to add CPM Reviews as the third respondent. At the same time he filed a reply. The reply was so long it included an index.

The relevant principles

26    Generally speaking, leave to appeal will not be granted unless the judgment in question is attended with sufficient doubt to warrant it being reconsidered on appeal and, on the supposition that the judgment is affected by error, substantial injustice will result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–9 (“Decor v Dart”); Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 at [29]. The sufficiency of the doubt required to persuade a court to grant leave will vary according to the subject matter of the application. In the present case, it was not suggested that leave ought to be granted on any other basis or for any other reason.

27    With the possible exception of the recusal question, the application in this case is concerned with matters of practice and procedure. In such a case appellate courts are particularly cautious about intervening: Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170 (“Adam P Brown”) at 177, referred to in this context in Decor v Dart at 400.

28    In Adam P Brown the High Court endorsed the following statement of Jordan CJ in In re the Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323:

[T]here is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice.

29    Ordinarily, in small claims leave will only be granted to appeal from a decision where there is a question of principle or of general public importance, “or an injustice which is reasonably clear, in the sense of going beyond what [is] merely arguable”: Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46] (Campbell JA, with the agreement of Young and Meagher JJA).

30    The difficulties these principles pose for Mr Dahler were not acknowledged, let alone overcome, in either the written or the oral submissions. They proved to be insurmountable.

The recusal application

31    Mr Dahler, through his counsel, Ms Keys, who appears for him on a direct access basis (that is to say, without a solicitor), sought the recusal of the primary judge because of remarks he had made about her in an earlier judgment: Keys v Department of Disability, Housing & Community Services [2011] FMCA 35 (“the 2011 judgment”). The applicant in that case was Ms Keys’s brother and Ms Keys had represented her brother in that matter, once again without a solicitor. In the 2011 judgment his Honour was critical of the written materials filed by Ms Keys and of her judgment. In particular, he was critical of her decision to appear for her brother. Ms Keys claimed that those remarks “defamed” her and that the primary judge was therefore biased against her (and presumably, by association, Mr Dahler).

32    The recusal application was made on 21 July 2014, without any advance notice, at the outset of the hearing of three interlocutory applications: Mr Dahler’s application for costs filed on 14 March 2014, Mr Dahler’s application to re-join CPM Reviews as a party made or foreshadowed (strange as that may seem) in his reply and formally by an Application in a Case filed on 1 July 2014 and the respondents’ application to strike out parts of Mr Dahler’s pleadings. The argument on the recusal application was apparently unaccompanied by any reference to authority. On 13 June 2014, when the hearing date was fixed by orders made in chambers, the primary judge ordered that the parties file and serve an outline of submissions in relation to each of the interlocutory applications. The respondents and CPM Reviews complied with the orders but no submissions were filed on Mr Dahler’s behalf. This was the subject of blistering criticism in the judgment the subject of this application. The primary judge acknowledged Ms Keys’s explanation (that she did not receive a copy of the orders until 2 July 2014 and, since then, had been too busy to attend to the submissions) but described it as unacceptable.

33    His Honour then proceeded to deal with the recusal application and the basis for it. He began by noting that Ms Keys had referred to no legal principle. He continued:

As indicated, she relied simply on remarks made by me in an earlier judgment in which she appeared as Counsel on behalf of her brother. In her submissions, she said that I had defamed her and that, because the comments were made in a judgment, I was formally ‘protected’ in relation to their defamatory content or import. I cautioned her in the use of her language.

(Footnotes omitted.)

34    His Honour then extracted three paragraphs from the 2011 judgment ([24]–[26]), which he understood to be the foundation for the recusal application. Paragraph 24 contained criticisms of the unnecessary prolixity of Mr Keys’s written material and the way it was presented, which he said “made its digestion and appreciation more arduous than it should have been or needed to be”. Paragraph 26 contained an observation about the number of people who had been involved in, and the amount of time that had been consumed by, matters relating to Mr Keys. No specific complaint was made about these criticisms on the application for leave to appeal. Paragraph 25 contains the relevant remarks, that is to say, the remarks about which complaint is now made. To understand Ms Keys’s complaint and his Honour’s reasons it is unfortunately necessary to reproduce them verbatim:

[A]lthough no formal objection was taken by any of the Respondents, the Applicant was represented throughout the proceedings by his sister, of Counsel. There are sufficient Bar Rules which confirm and warn of the difficulties that come from acting for a member of one’s family. I had the impression at different times during the trial (specific reference is given later in these reasons) that the degree of objectivity properly expected of Counsel was not always present. And, as I note below, I had very significant concerns at the genuine risk that Counsel for Mr Keys could easily have become a witness in the proceedings on the basis that, among other things, she attended a not insignificant number of meetings with her brother. However, notwithstanding my own disquiet, because no objection was taken by any of the Respondents to Mr Keys’ familial Counsel, and because it seemed to me that he suffered no undue prejudice as a result of his relational proximity to Counsel, I say nothing more about this matter.

(Footnotes omitted.)

35    This paragraph was accompanied by a lengthy footnote which referred to the ACT Bar Rules (the Legal Profession (Barristers) Rules 2008 (ACT)), a textbook on legal ethics and references to Ms Keys attending meetings with her brother and engaging in correspondence on his behalf which his Honour said “seem[ed] more like solicitors’ work than that of Counsel, contrary to the ACT Barristers Rules”. He also expressed concern that Ms Keys “could well have found herself as a witness in the litigation”. Finally, his Honour referred to Mr Keys’s Points of Claim and a nine-page letter he had sent in which allegations of dishonesty, intimidation, harassment and/or adverse treatment had been made against the ACT Government Solicitor and its counsel. His Honour said that “[a]t some appropriate stage, it may be that Ms Keys’ conduct in relation to this matter, and the accusations made, will need to be considered by relevant authorities”.

36    His Honour noted Ms Keys’s concerns about the references in that judgment to possible breaches of the ACT Bar Rules. He said he referred Ms Keys to the High Court’s decision in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 247 (“Michael Wilson”), adding that “[s]he neither acknowledged, nor considered, it”. His Honour then set out a number of extracts from the case law concerning apprehended bias. At [24] he noted that the relevant test for apprehended bias was “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Michael Wilson at [31].

37    The primary judge found (at [27]–[28]) that Ms Keys’s claim that she had been “defamed” was “at least, unsustainable”. His Honour noted that the Court’s comments about Ms Keys’s advocacy in the 2011 judgment were simply comments, not formal findings; that the comments were based on undisputed facts; and that no objection had been taken to any of those comments in the (unsuccessful) appeal from the 2011 judgment (Keys v Department of Disability, Housing & Community Services [2011] FCA 1424). His Honour also reasoned by analogy that if the High Court in Michael Wilson had found no reasonable apprehension of bias in the circumstances of that case, then the application for disqualification in the present case had to fail.

38    The first draft ground of appeal reads as follows:

In refusing to recuse himself, His Honour failed to acknowledge that the criticism he made of counsel in Keys v Department of Disability, Housing & Community Services & Ors [2011] FMCA 35 were unfair and unjustified, and needed to be retracted or corrected.

(a)    His Honour erred in re-publishing the criticisms.

(b)    His Honour erred in considering the recusal application according to principles associated with apprehended bias rather than actual bias.

(c)    His Honour erred in criticising counsel for the Applicant for failing to comply with Orders made in chambers on 13 June 2014 because the circumstances in which the Orders were made did not comply with section 13 of the Federal Circuit Court of Australia Act 1999; and notification of the Orders was not provided to the Applicant until 1 July 2014.

39    Ms Keys did not quarrel with his Honour’s analysis of the law in relation to apprehended bias. Rather, she contended that the primary judge erred because he applied the test for apprehended bias when her claim was that he was actually biased. The actual bias is said to be evident from the republishing of adverse comments he had made of her professional conduct in the 2011 judgment. Ms Keys further contended that the reasons for dismissing the recusal application proved her case, namely, that the primary judge had a mind made up against the application and was not open to persuasion. In oral argument (but not in her written submissions) Ms Keys contended in the alternative that the primary judge ought to have recused himself for apprehended bias.

40    It is, with respect, beside the point that the comments made in the 2011 judgment were not formal findings. If they evinced bias, it does not matter that they did not amount to findings.

41    Nevertheless, for the following reasons, I am not persuaded that the primary judge’s decision to refuse to recuse himself is attended by sufficient doubt to warrant the grant of leave.

42    First, if the primary judge erred in applying the test for apprehended (rather than actual) bias, he erred in Mr Dahler’s favour. That is because the test for apprehended bias is usually easier to satisfy than the test for actual bias: Spencer v Bamber [2012] NSWCA 274 (“Spencer”) at [16]. In contrast to apprehended bias, which is concerned with the appearance of bias, actual bias requires an inquiry into the actual thought processes of the judge (Spencer at [107]); an assessment of the judge’s state of mind (Michael Wilson at [33]). Actual bias requires “a pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made”: Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 104 (French J). To make out a case of actual bias based on prejudgment it is necessary to show that the decision-maker approached the case with a closed mind, one which was not susceptible to persuasion, regardless of the evidence or the arguments. As Gleeson CJ and Gummow J put it in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (“Jia”) at [72]:

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. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

43    An allegation of actual bias must be “distinctly made and clearly proved”: Jia at [69] (Gleeson CJ and Gummow J).

44    To establish apprehended bias by reason of prejudgment, on the other hand, it is merely necessary to show that a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the questions in dispute: see, for example, Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 300; Johnson v Johnson (2000) 201 CLR 488 at [11].

45    Second, it is understandable that the primary judge did not appreciate that the application was for actual bias. Applications of this kind are not uncommonly made by litigants in person but rarely, if ever, counsel. Moreover, Ms Keys conceded that, not only had she not referred his Honour to any authorities, but she had not mentioned the words “actual bias” or “closed mind” or “incapable of persuasion” or words to that effect.

46    Third, there is no error in re-publishing the criticisms. Ms Keys’s recusal application was based on them. His Honour was obliged to give reasons. He was entitled, if not obliged, to include in those reasons at least the substance of the criticisms. Had he paraphrased them, he might have done Ms Keys a disservice.

47    Fourth, in her application for recusal, Ms Keys submitted that in the 2011 judgment his Honour had defamed her and that, because his comments were made in a judgment, he was formally “protected” in relation to their defamatory content or import. That is no basis for a finding of either actual or apprehended bias. Moreover, even if the remarks in the 2011 judgment did defame Ms Keys that is not enough to require recusal. Ms Keys needed to show that, by reason of the remarks, his Honour had prejudged an issue in the present case or that a fair-minded observer might reasonably apprehend that he might do so. Where apprehended bias is alleged, it is necessary to both identify the facts and circumstances that it is said might lead the judge to decide the case otherwise than on its merits; and objectively establish “the logical connection between [the facts and circumstances said to give rise to the apprehension]” and “the feared deviation from the course of deciding the case on its merits” or, put another way, “the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided”: Michael Wilson at [63], [67]. Ms Keys accepted that in a case of actual bias it was also necessary to demonstrate a connection between the facts and circumstances said to give rise to bias and the asserted conclusion that the judge was actually biased. Here, the necessary connection is not obvious. In contrast to the position in 2011, in this case Ms Keys is not acting for a family member. The questions his Honour was considering were quite different from the questions he was called upon to resolve in the 2011 judgment. In her written submissions, Ms Keys did not identify the connection. In oral argument, when pressed, however, Ms Keys submitted that she, herself, was the connection: she was counsel in both cases and she appeared in those cases instructed directly by the client. She argued:

… his Honour criticised me in a professional capacity when that was not an appropriate thing to do. If there were concerns about me acting inconsistently with bar rules, that is a matter that should have been referred to the Bar Association. It’s not a matter that should be the subject of comment in a decision, in a judgment of the court. And of course it concerned allegations or claims about my professional conduct. There was at least an apprehension that that would occur in this case [as] well, in which I was appearing and on a direct access basis.

48    But the question is not whether the primary judge might criticise counsel in the case because he had done so in a previous case or whether there was a reasonable apprehension that he might do so. As I have already observed, the question is whether there is a logical connection between the criticisms of counsel in the earlier case and the proposition that the judge had a closed mind in the present one or a fair-minded lay observer might reasonably apprehend that the judge might not on that account bring an impartial mind to the resolution of the issues in the present case. All Ms Keys’s submission deals with is the identification of the relevant facts and circumstances. It says nothing about why those facts and circumstances would cause the judge to close his mind to any reasonable argument that might be put on behalf of Mr Dahler or might cause a fair-minded lay observer to think that he might not bring an impartial mind to the resolution of the issues in the present case. As counsel for the respondents submitted, there was, at least, a basis for his Honour’s concerns. One of the rules to which his Honour referred was r 91 which permits a barrister to refuse a brief if there is a real possibility the barrister may be required to cross-examine or criticise a friend or relation. The textbook to which his Honour referred was G E Dal Pont, Lawyers’ Professional Responsibility (4th ed) (Lawbook Co.) which states (at [17.65]) that:

Lawyers should … be wary of the dangers of representing friends or relatives. In addition to the issues of independence and objectivity, lawyers who do so may be tempted to cut corners, accept work beyond their competence, or be less exact with issues of professional responsibility (for instance, the duty of confidentiality). There is the further danger, by reason of the lawyer’s connection with the client, that he or she may be called as a witness in the client’s case …

(Footnotes omitted.)

49    These are the very concerns the primary judge voiced in the 2011 judgment. It was, as his Honour said in his reasons in the present case, “an undeniable fact” that Ms Keys represented her brother in the 2011 case. Whether it was appropriate to express these concerns in the judgment in that case may be open to question. If, as Ms Keys submitted, his Honour did not raise these concerns with her before they appeared in the judgment, then she may have a point when she says that it was unfair to her because she had no opportunity to answer them. It would, indeed, have been better for everyone if his Honour had referred the matter to the Bar Association for investigation. But this is no proper basis for an allegation of bias against her client, actual or imputed.

50    I am not satisfied that there is a logical connection between the remarks in question in the 2011 judgment and the alleged apprehended or actual bias. Still less am I satisfied that there is any basis for concluding that the primary judge was so prejudiced against Ms Keys that he approached the hearing of the interlocutory applications with a closed mind, incapable of persuasion. I say interlocutory applications because the primary judge noted in his reasons that he had advised the parties on 21 July in open court that he would not be the trial judge to determine the substantive application (see footnote 3 to the judgment).

51    Ms Keys also relied on observations made in the judgment, the subject of the leave application. These observations were made in the context of his Honour’s disposition of Mr Dahler’s application for the costs of the 2 December 2013 application and of the application before Foster J. The first appears at [39] where the primary judge observed:

As a statement of fact only, it is an unfortunate feature of all matters in which Ms Keys is briefed directly as Counsel that there remain ongoing issues regarding “parties” and “pleadings”, as there are in the current matter.

52    The second appears at [40] where the primary judge referred again to the 2011 judgment and the concerns he then recorded about Ms Keys’s involvement in “matters that could lead to her being called as a witness” (original emphasis). He continued:

While I do not at present apprehend there to be a similar concern in the current matter, nonetheless there is clear evidence (e.g. the email exchange to which I have referred with the ACT Government Solicitor in November 2013) in which many of the tasks she performs are more akin to those usually performed by solicitors. In my view, being retained and acting essentially in the dual role of Counsel and solicitor inevitably risks placing Ms Keys in potential jeopardy of being called as a witness. It is, of course, a matter for her if she continues to exercise such a delicate balance.

53    While it would have been better if they had not been made, neither of these observations, whether considered individually or together, is sufficient to demonstrate bias. I am not persuaded that there is a logical connection between them and the asserted conclusions. In particular, they provide no sufficient basis to conclude that his Honour had set his mind against determining the arguments put on Mr Dahler’s behalf on their merits.

54    The remarks of the primary judge in his reasons for disposing of the interlocutory applications are irrelevant to the question of apprehended bias: Michael Wilson at [67]–[68]. The plurality observed at [67] that “[a]n allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue” (original emphasis). They held that the Court of Appeal had erred in noting that “the judgments given by the primary judge tend to enhance, rather than diminish, the apprehension that would otherwise arise” (Nicholls v Michael Wilson & Partners Ltd (2010) 243 FLR 177; [2010] NSWCA 222 at [94]). While it is permissible for certain purposes to have regard to the reasons for declining a recusal application (Barakat v Goritsas (No 2) [2012] NSWCA 36 (“Barakat”) at [58]), neither of the two passages upon which Ms Keys relied appeared in that part of the reasons of the primary judge dealing with the recusal application. In any case, I do not consider that these remarks might suggest to a reasonable fair-minded lay observer that the primary judge might not have approached the determination of the issues with an impartial and unprejudiced mind. Once again, I am not satisfied that there is a logical connection between the making of these observations and the claimed deviation (whether actual or apprehended) from deciding the applications on their merits. The first remark was made in the context of the description by Foster J of the application before him as “utterly misconceived”. In substance, the second was merely an aside with no apparent connection to any issue.

The applicant’s costs application

55    Mr Dahler sought costs of the Application in a Case filed on 2 December 2013 and of his application for extension of time and leave to appeal filed in the Federal Court on 3 March 2014. He submitted that he would not have incurred the costs associated with these proceedings if the ACT had consented in November 2013 to the addition as a respondent of “the Chief Minister or any other appropriate ACT Minister”.

56    The primary judge dismissed the application. His Honour gave seven reasons:

(1)    The basic responsibility for the proper naming of respondents rested with the applicant, albeit necessarily informed by information provided by the ACT Government Solicitor.

(2)    Based on the detailed information provided by the ACT Government Solicitor in early November 2013, there was “no requirement or foundation” for “either” respondent to agree to a change of name.

(3)    There was no causal connection between the change in name and the application to the Federal Court. That application could have been made within time.

(4)    The substance of the application in the Federal Court (seeking leave to appeal from the failure to give judgment) was “astonishing”. It was described by Foster J as “utterly misconceived”.

(5)    Ms Keys was acting in the dual role of solicitor and counsel and therefore risked being called as a witness. This reason appears in the passage I quoted at [52] above.

(6)    Ms Keys pointed to no legal basis why the usual order that there be no order as to costs (FW Act, s 570) should not apply. In any case, the factual circumstances did not warrant an order for costs.

(7)    The need for amendment arose out of counsel’s defective pleading (naming the “ACT Government t/as Community Services Directorate” as respondent, when there was no such legal entity). The “necessary implication [was] that Counsel did not properly check the legal identity of the [proper] respondent(s)”.

57    The draft notice of appeal cites two errors:

(a)    finding and regarding as relevant the “unfortunate feature of all matters in which Ms Keys is briefed directly as counsel that there remain ongoing issues regarding ‘parties’ and ‘pleadings’” and “this biased error” affected the primary judge’s consideration of the costs application; and

(b)    failing to take into account the respondents’ conduct in refusing consent to the addition of the second respondent until 6 March 2014.

58    Ms Keys’s submissions in this Court were as follows.

59    First, she said that the Fair Work Commissioner named the “ACT Government as represented by the Community Services Directorate” as the employer in the s 369 certificate. For this reason she submitted that there should have been “no implication” that she had not properly checked the employer’s legal identity. Secondly, she submitted that, contrary to his Honour’s third reason, the causal link between the change of name and the application in the Federal Court was to be found in Foster J’s first order dismissing the application on terms that the parties consent to an order adding the Minister as a second respondent. Thirdly, contrary to the second reason, there was a foundation for the ACT to agree to the change in name. That was s 795 of the FW Act, which provides that, for the purposes of the Act and the procedural rules, the employer of a public sector employee must act only through the employee’s “employing authority”, which, in this case, includes the Chief Minister and other Ministers. Ms Keys referred to a decision of the Fair Work Commission in Painter v Commonwealth of Australia (Department of Defence) [2011] FWAFB 8043 (“Painter”). Fourthly, the reasonableness of the respondents’ conduct should have been considered “in the context of the mandatory requirements of [s 795]”. Fifthly, the statements made by the primary judge about her own conduct (acting as solicitor and counsel) were not only irrelevant, but “further instances of actual bias where His Honour has acted with such partisanship or hostility toward counsel for the Applicant as to show that he had a mind made up against and was not open to persuasion in favour of the Applicant”.

60    His Honour’s remarks about Ms Keys’s conduct (the fifth reason for refusing the application) were, with respect, gratuitous. They afforded no basis for refusing the application.

61    I also accept Ms Keys’s submission that, to the extent that she relied on s 795 of the FW Act, she had some foundation for her proposal, although I do not accept that the decision in Painter provides any support for it.

62    I am not, however, persuaded that the primary judge’s decision not to award her costs is attended by sufficient doubt to warrant a grant of leave. In a matter arising under the FW Act, a party may only be ordered to pay costs incurred by another party in accordance with s 570(2) or s 569 or 569A. (Sections 569 and 569A are irrelevant. They deal with interventions in proceedings by the Minister on behalf of the Commonwealth or the States or Territories in matters of public interest.) Mr Dahler relied on s 570(2)(b), which permits the Court to award costs if satisfied that the unreasonable act or omission of the party against whom the order is sought caused the other party to incur costs. He contended that it was unreasonable of the ACT not to agree to the proposition in Ms Keys’s email. One problem with this contention is that the order Mr Dahler sought in his interlocutory application of 2 December 2013 was not the order Ms Keys invited the ACT to agree to. Mr Dahler sought the ACT’s consent to add the Chief Minister. The application, however, sought an order to add the Minister for Community Services. Another problem with Mr Dahler’s contention is that there is a genuine dispute about whether the Minister is a proper party. That question is not free from doubt. The ACT Government Solicitor provided a cogent argument in support of its position. Contrary to the proposition in para (b) of the draft notice of appeal (referred to above at [57]), the primary judge did take into account the respondents’ refusal to consent to the amendment proposed. He just did not consider it unreasonable.

63    I am far from convinced that s 795 has any bearing on who the employer is for present purposes or how the employer should be named in the present case. The section appears to deal with who has the authority to act on behalf of the employer and whose acts bind the employer. It does not appear to go any further. The Explanatory Memorandum to the Fair Work Bill (to which Ms Keys was referred by Ms Banks in her email of 7 November 2013) tends to support this view. But whether or not Ms Keys or the ACT Government Solicitor is correct need not be determined on this application. It is sufficient to say that I am not at all persuaded that the stance that was adopted by the respondents before the primary judge was not unreasonable. In my opinion, his Honour was correct to reject the contention that s 570(2)(b) was engaged.

64    As for Ms Keys’s other submissions, it is not to the point that the s 369 certificate named as the respondent the “ACT Government as represented by the Community Services Directorate”. The description of the respondent in the certificate does not amount to a representation that that is its correct legal identity. It is apparent that the name was taken from, or based upon, the application filed by Mr Dahler or the response which in substance reproduced the same information. The primary judge was right to observe that the basic responsibility for properly naming the respondents rests with the applicant, albeit informed by information provided by the respondent. I accept that in its response the ACT identified the “ACT Government/Community Services Directorate” as the employer’s legal name. But the response was not completed by a lawyer. In contrast, as a lawyer, Ms Keys ought to have realised that there was a problem with the nomenclature. I note that s 21 of the Court Procedures Act 2004 (ACT) provides that proceedings against a Minister or an ACT agency are to be brought “under the name of the Australian Capital Territory”.

65    In any event, there is an insuperable problem with Mr Dahler’s complaint concerning the costs of the application in this Court. Foster J had already made a costs order in that application. The effect of that order was that costs of the application should be costs in the cause. As I have already indicated, that order was in the following terms:

The costs of and incidental to the said application in this Court be costs in application No CAG46 of 2013 in the Federal Circuit Court of Australia.

66    Ms Keys seemed to think that this was an order that the Circuit Court decide the matter. It is difficult to understand why she formed that view. In my view the order unambiguously determines the question of costs. If, however, there were any ambiguity, it is removed by the last sentence of the judgment in which the order was published. That reads:

Costs should abide the outcome in the Circuit Court.

The application to add CPM Reviews Pty Ltd as a party

67    Following its investigation into the allegations of misconduct made against Mr Dahler, CPM Reviews provided a report to the ACT. A copy of that report was tendered in evidence. The primary judge noted that the report made findings about Mr Dahler’s conduct but no recommendations concerning action to be taken against him.

68    CPM Reviews, it will be recalled, was removed as a party on 21 October 2013. Reasons were given orally at the time and, it appears, have never been reduced to writing. Allegations were made about the investigation in the statement of claim. As I have already indicated, the spectre of re-joinder was first raised in the reply, which devoted a little over three pages to the subject of “[a]dding the third respondent”. This section of the reply began at para 13. It reads:

As a consequence of and arising from the Statement of Claim and the Defence, the Applicant now names CPM Reviews Pty Limited as the Third Respondent because they were involved in the contraventions of sections 340 and 351 of the Fair Work Act pleaded at paragraph 27 of the Statement of Claim, pursuant to section 550 of the Act. The Applicant claims that the Third Respondent is taken to have contravened sections 340 and/or 351 of the Act because, in the process of conducting an investigation under the ‘workplace behaviours’ procedures of the Community Services Directorate Enterprise Agreement and producing draft and final reports, they –

(a)    aided, abetted and/ or counselled Bronwen Overton- Clarke, Lois Ford and Maureen Sheehan in connection with the termination of the Applicant’s employment;

…

(b)    were, either directly or indirectly, knowingly concerned in or party to the decision to terminate the Applicant’s employment; and/or

…

(c)    conspired with others to effect the termination of the Applicant’s employment.

…

69    The passages which are omitted from this extract, designated by the ellipses, contain references to various paragraphs of the statement of claim in which “the facts alleged to constitute [the conduct]” are said to be “described” and to the paragraphs in the defence relating to them.

70    Quite why the pleader thought it appropriate to deal with this issue in this way is a mystery. But after the matter had been set down for interlocutory hearing, the Application in a Case formally seeking the company’s joinder was filed. That application was not accompanied by an affidavit which explained the basis for the application, the delay in making it or what had changed since the time the primary judge had removed CPM Reviews as a party (a decision, I hasten to add, which was not the subject of any application for leave to appeal). Nor was the application accompanied by a draft amended statement of claim which would give CPM Reviews and the Court any understanding of the basis of the application. It will be recalled that, despite the Court’s order for written submissions, none were filed.

71    The primary judge not only rejected the application, he also ordered that Mr Dahler pay CPM Reviews costs, which he fixed in the sum of $1661 in accordance with Schedule 1 of the Circuit Court Rules.

72    According to his Honour’s reasons, Ms Keys made brief oral submissions. He summarised those submissions in this way:

In short, she said that it was a necessary inference from the conclusions in the CPM Reviews Report that adverse action was intended, and would be intended to be taken, against Mr Dahler.

73    His Honour said that he drew Ms Keys’s attention to the decision of the Full Court in Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299; [2007] FCAFC 87 (“Clarke”) at [26] (Tamberlin, Gyles and Gilmour JJ), where the Court said of the provision relating to accessorial liability in s 4(8) of the Workplace Relations Act 1996 (Cth):

Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen (1985) 156 CLR 473 at 479–480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words “party to, or concerned in” [which appeared in s 4(8)] reflect that concept. The accessory must be implicated or involved in the contravention (Ashbury v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E–308D (agreed with by Street CJ at 304 and Finlay J at 310)) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588; 112 IR 388 at [34], must participate in, or assent to, the contravention.

74    His Honour said that Ms Keys did not respond to his invitation to “consider” Clarke or to make any submissions about it and that she did not refer to any relevant authority to support her application.

75    His Honour noted that the conduct of CPM Reviews did not meet the description in s 342 of the FW Act of the circumstances in which it could be said that a person has taken “adverse action” against another. He also held that in producing the report CPM Reviews did not advise, encourage, incite or take any action with intent to coerce the ACT to take adverse action within the meaning of s 362 of the Act. He then referred to the terms of s 550 and to Clarke and said that “mere involvement” was insufficient to “attract” the terms of s 550. His Honour also referred to another Full Court decision (Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2012) 209 FCR 448), which concerned s 48 of the Building and Construction Industry Improvement Act 2005 (Cth) and which, unlike s 4(8) of the Workplace Relations Act, was in relevantly identical terms to s 550. The Court held (at [38]) that “the putative accessory must intentionally participate in the contravention and to form the requisite intent he must have knowledge of the essential matters which go to make up the contravention”.

76    His Honour noted that nothing had changed since he ordered the removal of CPM Reviews back in October 2013. He described the joinder application as misconceived. He said that nothing in the report suggested any conspiracy between CPM Reviews and any of the respondents or any relevant intent to be involved in any adverse action against Mr Dahler. He also said that nothing in the report suggested that CPM Reviews had aided or abetted the action ultimately taken by the respondents against Mr Dahler. And he noted that Ms Keys confirmed that in neither the originating application nor the statement of claim (nor, for that matter, the reply) was any relief sought against CPM Reviews.

77    It was for all these reasons that his Honour dismissed the application.

78    In substance, this was a decision that the re-joinder application had to be dismissed because the claim as formulated had no reasonable prospects of success.

79    Having regard to the draft notice of appeal, I should add that his Honour referred to a submission by Ms Keys that it was difficult to prepare the matter against CPM Reviews because it was a company and should have been represented by a lawyer. The non sequitur aside, his Honour noted that Ms Brennan, who signed the submissions on behalf of CPM Reviews and, I infer, also appeared for the company on its application to remove it as a party, was a registered legal practitioner, authorised by the company to make the submissions. He described Ms Keys’s submission as “improper”, being “without legal or factual foundation”.

80    The primary judge ordered that Mr Dahler pay the costs of the application because it had been made “without reasonable cause” (s 570(2)(a)) and/or Mr Dahler’s “unreasonable act caused [CPM Reviews] to incur the costs” (s 570(2)(b)). In reaching this conclusion, his Honour referred, amongst other things, to the Court’s earlier removal of CPM Reviews as a party and the fact that Mr Dahler had never sought (and still did not) seek any relief against CPM Reviews.

81    The alleged errors in the draft notice of appeal dealing with this part of the judgment are:

(1)    failing to acknowledge that at the time he removed CPM Reviews as a party he told Mr Dahler he could join the company at a later time (for instance, after pleadings).

(2)    taking into account the contents of the report from CPM Reviews when it was “untested ‘evidence’”; concluding that CPM Reviews was contracted by the ACT to undertake a review of Mr Dahler’s conduct; applying Clarke and requiring Mr Dahler to establish a direct link with the purpose of the perpetrators and participation in or assent to the contravention;

(3)    finding that counsel’s submissions regarding the representation of CPM Reviews were improper, “such biased error infect[ing] his consideration of their joinder”; and

(4)    exceeding his powers under the FW Act to award costs to CPM Reviews, making an order for costs in the absence of an application by CPM Reviews and failing to have regard to whether any costs had actually been incurred.

82    Ms Keys submitted that his Honour erred in applying Clarke and requiring Mr Dahler to establish a direct link with the purpose of the perpetrators. She contended that was only “possible” after evidence had been adduced by the employer perpetrator and any named accessories, and after that evidence had been tested. She submitted that “[a]t a preliminary stage prior to any hearing, the reasons for the adverse action are peculiarly within the knowledge of the employer (and accessories) and consequently an employee/applicant is not required to establish a ‘direct link’ between the claimed reasons and the adverse action – it is sufficient if an applicant employee proves the existence of objective facts which are said to provide a basis for the adverse action [see Rojas v Esselte Australia Pty Ltd (No. 2) [2008] 177 IR 306 at [49] to [51]; and the statutory presumption embodied in section 361 of the Fair Work Act.]”

83    These submissions must be rejected. They are based, in part, on the misconception that the presumption in s 361 applies to accessorial liability under s 550. I interpolate that Mr Dahler did not rely on s 362. As Gilmour J observed in Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 2) [2013] FCA 943 at [156], the statutory presumption only applies to cases of direct liability, that is to say, where it is alleged in an application that a person took (or is taking) action for a particular reason or with a particular intent in contravention of Pt 3-1 of the FW Act. To succeed on his application Mr Dahler needed to persuade the Circuit Court that he had, at least, a reasonably arguable case that the company contravened the FW Act. To do that, in respect of each or any of the bases upon which it would be alleged that CPM Reviews was involved in the adverse action taken by Mr Dahler’s employer, he needed to identify the basis upon which it would be put that CPM Reviews had the intention and/or knowledge which s 550 calls for. As a company has no mind of its own, he had to identify the person or persons whose conduct was to be attributed to the company: Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 2) at [157]. Nowhere in any of the documents before the court or in argument was there mention of the individual or individuals whose conduct was sought to be impugned. It was also necessary for Mr Dahler to identify with precision the particular acts of the individual(s) concerned which would be relied upon to make out a case under each or any paragraph of s 550. That was never done either. The references in the reply to paragraphs of the statement of claim were references to the conduct of the ACT, not CPM Reviews.

84    As for the other matters raised by the draft notice of appeal, it is neither here nor there that the primary judge may have indicated in October 2013 that it was open to Mr Dahler to apply to the court to add CPM Reviews at a later stage. Before he could do so, he had to be able to show that he had a reasonably arguable case against the company. He did not. He also had to show that something had changed since the company had been removed as a party. He did not do that either. Ms Keys denied that she confirmed to the court that she did not seek any relief against CPM Reviews but her denial was not accepted by CPM Reviews. As I was not taken to the transcript of argument, I am not prepared to accept that the primary judge erred in this respect.

85    I do not see why it was not open to the primary judge to have regard to the report of CPM Reviews for the purpose for which he did so.

86    The observation that Ms Keys’s submission about CPM Reviews not being represented by a lawyer was “improper” is not indicative of bias against anyone, least of all Mr Dahler. Ms Keys claimed that she did not know that Ms Brennan was a lawyer. But it seems tolerably clear from his Honour’s reasons that Ms Brennan had told the court on more than one occasion that she was a registered legal practitioner. In that event, the submission could fairly be described as improper in that it was made without any proper foundation and contrary to what Ms Keys actually knew or, at least, should have known. Even if Ms Keys honestly believed that Ms Brennan was not a lawyer, I fail to see how that could explain any difficulty Ms Keys had in preparing a case against CPM Reviews.

87    There is no reason to doubt the correctness of the primary judge’s decision on the question of the joinder of CPM Reviews.

88    Finally, there is the question of the costs order.

89    There is no substance in the notion that the primary judge lacked the power to make an order for costs in the absence of an application from CPM Reviews. There was in fact an application. It was made in CPM Reviews’s written submissions, as Ms Keys acknowledged in oral argument. In any case, the court’s power to make a costs order is not dependent on an application. Where the Circuit Court Rules in a particular case are insufficient, that court is entitled to apply the Federal Court Rules 2011 (Cth) in whole or in part and modified as necessary: FCCR, r 1.05(2). Rule 1.40 of the Federal Court Rules gives the court the power at any stage of a proceeding to exercise a power mentioned in the rules on its own initiative.

90    The proposition that there is no evidence that any costs were incurred must also be rejected. CPM Reviews filed written submissions.

91    As to the question of the power to make the costs order, r  21.02(2)(a) of the Circuit Court Rules enables the court to set the amount of the costs. In any case, unless the court otherwise orders, a party entitled to costs in a proceeding (other than one to which the Bankruptcy Act applies) is entitled to costs in accordance with Parts 1 and 2 of Schedule 1: FCCR, r 21.10. Schedule 1 provides for a sum of $1,661 for an interim hearing. Presumably this is the source of the figure his Honour fixed upon. It is a fair inference that he set the sum to avoid any future argument.

92    Nevertheless, it is arguable that the primary judge did exceed his powers in this respect and that there is therefore doubt about the correctness of his Honour’s decision to award costs to CPM Reviews. As Ms Keys pointed out, s 570 only refers to costs incurred by a party. At the time the order was made CPM Reviews was not a party. Ms Brennan, who appeared for CPM Reviews by leave before me, submitted otherwise. Her submissions, however, were unpersuasive. First, she relied upon authority for the proposition that the word “proceedings” should be given a broad meaning. That is beside the point. The question is what the word “party” means. Second, she referred to the statement on this Court’s website that “parties” refer to “people involved in a court case”. How that statement could affect the meaning of the term “party” in the FW Act was not explained.

93    The general power the Circuit Court has to award costs (contained in s 79 of the Federal Circuit Court of Australia Act 1999 (Cth)) is not limited to costs incurred by a party, but s 79(1) provides that the section does not apply to proceedings in relation to a matter arising under the FW Act.

94    Yet, I would not grant leave to appeal on this ground because I am not satisfied that any substantial injustice would result if leave were refused and the decision were wrong. I have formed that opinion for two reasons. First, the injustice adverted to was that Mr Dahler was impecunious and unable to meet a costs order at this stage. Assuming that to be a relevant injustice, interlocutory costs are not ordinarily payable immediately. Rule 21.02(1)(d) of the Circuit Court Rules enables the court to set a time for payment of the costs, which may be before the proceeding is concluded. Second, Ms Brennan gave an undertaking to the Court on behalf of the company not to enforce the costs order until the substantive application was disposed of.

The application to strike out parts of the applicant’s statement of claim and reply

95    I referred above to the respondents’ application to strike out large parts of the statement of claim. It was made by an Application in a Case filed on 18 March 2014, five days after the statement of claim had been filed and four days after the primary judge ordered that a defence be filed. The application to strike out the reply was made orally at the interlocutory hearing on 21 July 2014.

96    The primary judge held that r 16.02 of the Federal Court Rules was applicable in this case: FCCR, r 1.05(3).

97    Rule 16.02 states:

Content of pleadings—general

(1)    A pleading must:

    (a)    be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and

    (b)    be as brief as the nature of the case permits; and

    (c)    identify the issues that the party wants the Court to resolve; and

    (d)    state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and

    (e)    state the provisions of any statute relied on; and

    (f)    state the specific relief sought or claimed.

(2)    A pleading must not:

    (a)    contain any scandalous material; or

    (b)    contain any frivolous or vexatious material; or

    (c)    be evasive or ambiguous; or

    (d)    be likely to cause prejudice, embarrassment or delay in the proceeding; or

    (e)    fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

    (f)    otherwise be an abuse of the process of the Court.

(3)    A pleading may raise a point of law.

(4)    A party is not entitled to seek any additional relief to the relief that is claimed in the originating application.

(5)    A party may plead a fact or matter that has occurred or arisen since the proceeding started.

98    The respondents submitted below that the critical issue in a case such as this is whether there is a causal nexus between the termination of the employee’s employment and one or more of the alleged prohibited reasons for termination. They referred to authorities said to support the proposition that an inquiry into the validity of the steps leading to dismissal was not authorised. Consequently, they argued that the alleged facts concerning the process of investigation into Mr Dahler’s conduct were not material and therefore offended r 16.02(1)(d). They submitted that sub-paras 28(a) and (b) which contained allegations that the investigation or report of CPM Reviews was “not impartial”, “biased” or “improper” were evasive and embarrassing, stating conclusions, not facts. They also submitted that numerous other matters in the statement of claim were also not material because they did not relate to the critical issue. Others offended r 16.02(1)(a) because they were not divided into separate paragraphs each dealing with a separate matter. Others unnecessarily stated evidence or the terms of documents contrary to rr 16.02(1)(d) and 16.04. Full particulars of these matters appear in the respondents’ written submissions below. Overall, the respondents submitted that the pleadings were prolix, evasive and embarrassing and did not give the respondents fair notice of the case they had to meet, contrary to rr 16.02(1)(b) and (d) and 16.02(2)(2)(c) and (d). As a result of all these defects, the respondents submitted that the pleadings amounted to an abuse of process and caused them prejudice in having to obtain instructions about, and plead to, “unnecessary matters” and in being unable to disentangle the material from the immaterial facts and evidence.

99    The respondents also submitted that, for various reasons, the reply was improperly pleaded.

100    His Honour accepted these submissions. He also held that the statement of claim and the reply were “replete with detailed matters of evidence”, “prolix to a very significant degree” and also embarrassing because of their lack of clarity. For these reasons he ordered that paragraphs 1–6, 10–15, 18 and 21–28 of the statement of claim, and the whole of the reply, be struck out and that the statement of claim and reply be re-pleaded to comply with r 16.02 of the Federal Court Rules.

101    In the draft notice of appeal Mr Dahler alleges that the primary judge erred in striking out the various paragraphs of the statement of claim on the ground that the statement of claim was “replete with detailed matters of evidence” (“the finding”) and when the respondents had filed a defence and after he had filed a reply. He contends that the finding was not “a fair reading of the Statement of Claim”.

102    There is no merit in this ground. As I have already indicated, the finding was not the only reason his Honour gave. Furthermore, his Honour’s decision was entirely justified. Indeed, had I been the primary judge I would have struck out the whole of the statement of claim with the reply.

103    Both the statement of claim and the reply reflect a lack of understanding of the basic rules of pleading.

104    The purpose of pleadings is to identify the issues and to give the other party or parties “fair notice” of the case they have to meet: Barclays Bank v Boulter [1999] 1 WLR 1919 at 1923 (Lord Hoffman). Pleadings also provide the parameters against which questions about the admissibility of evidence can be decided.

105    The obligation of the pleader is to state the material facts. That does not mean all the facts or all the relevant facts. A fact is material if it is essential to the cause of action. The expression refers to the fact or combination of facts that give rise to a right to sue: Do Carmo v Ford Excavation Pty Limited (1984) 154 CLR 234 at 245 per Wilson J. The applicant’s pleadings did not plead material facts, nor was it as brief as the nature of the case permitted. The statement of claim was discursive. It offended the rule about pleading facts, not evidence. The primary judge was correct to describe it as “replete with detailed matters of evidence”. Numerous paragraphs contained detailed extracts from correspondence. No attempt was made to summarise the effect of the correspondence or to relate it to one of the elements of the cause of action. Nor was any made to plead the material facts. Many of the allegations were peripheral to the cause of action. Where inessential facts are pleaded, they are liable to be struck out as prejudicial and embarrassing to the fair trial of the action: Bernard Cairns, Australian Civil Procedure, 10th edition, LawBook Co, 2014 (“Cairns”), [6.180]. The observations that Dawson J made in East West Airlines (Operations) Ltd v Commonwealth of Australia (1983) 49 ALR 323 at 326 (“East West”) could equally have been made in the present case:

[E]ven if the statement of claim discloses a cause of action, it does so only in the course of pleading immaterial facts which at best are merely evidentiary and at worst are not relevant at all. The fair trial of the action would be delayed if the defendants were required to plead to these allegations and if other interlocutory procedures could be directed to them. There are also…matters pleaded which are embarrassing in that they are not susceptible of being pleaded to by the defendants.

106    In East West paras 10-46 of the statement of claim was struck out, though not all the paragraphs were objectionable. Dawson J considered it was undesirable to try to “sift out” the necessary parts from the unnecessary and embarrassing passages.

107    One of the many difficulties presented by the statement of claim in the present case is the rolled-up way the two principal contentions giving rise to the claim for relief are dealt with. And it is not until para 27 that the allegation of adverse action emerges. That follows a lengthy narrative about Mr Dahler’s work history with the ACT and a verbatim account of the contents of various items of correspondence which will presumably be tendered at the hearing.

108    Paragraph 27 reads:

The applicant was therefore dismissed from his employment with effect from close of business on 31 May 2013 (‘adverse action’) because of –

(a)    his role or responsibility and/ or participation in a ‘workplace behaviours’ process under the Community Services Directorate Enterprise Agreement 2011-2013 (a workplace right), in contravention of section 340 of the Fair Work Act; and/ or

(b)    his responsibilities as a carer (the attribute) in contravention of section 351 of the Fair Work Act.

109    This paragraph includes several allegations: that the appellant was dismissed, that the dismissal constituted adverse action, and that the dismissal was because of one or both of the reasons given.

110    Each of these matters should have been pleaded in separate paragraphs to enable the respondent to admit or deny them: r 16.02(1)(a). Furthermore, it was incumbent on Mr Dahler to identify the particular aspect of s 340(1) he was relying on. It was also necessary for him to plead the basis for his allegation that he had or had exercised a workplace right (in other words the particular aspect of s 341(1) he was relying on). These matters should have been clearly and succinctly stated in the statement of claim. They were not.

111    A pleading in the current form invites a simple denial which assists no-one. Fortunately the ACT did not respond in this way. But its defence and the lengthy reply demonstrate that it apparently misunderstood the critical allegations. For example, in its defence the respondents denied that Mr Dahler was a carer of a client in the place where he worked. In the reply, Mr Dahler contended that the respondents had wrongly assumed that his case was that his responsibilities as a carer were towards a family member. Similarly, in the reply Mr Dahler quarrelled with the respondents’ understanding of that part of his claim based upon his asserted workplace right. That is unlikely to have happened if the case had been properly pleaded in the first place.

112    Another difficulty with the statement of claim is reflected in para 4:

At the same time, similar allegations were made concerning the conduct of the Burn House supervisor, Jan Pfitzner, and Bernie Roveta, and in separate actions, both Ms Pfitzner and Mr Roveta were suspended from duty at Burn Group House, pending an investigation being conducted by CPM Reviews.

113    The relevance of this matter to the appellant’s cause of action is obscure. At best it is an indication that the appellant may seek to rely on tendency evidence. There is no place for an allegation like this in the statement of claim. It was rightly struck out.

114    The contention that the primary judge erred in making the order after the pleadings had closed and the case had been listed for trial goes to the exercise of the primary judge’s discretion. Ms Keys did not point to any basis upon which it could be said that the discretion miscarried. Nor did she advert to the relevant principles set out in House v The King (1936) 55 CLR 499 which govern appellate interference with discretionary decisions.

115    In all these circumstances, there is no prospect of Mr Dahler establishing appealable error with respect to the decision to strike out the various paragraphs of the statement of claim.

116    Although Mr Dahler does not seek to appeal the decision to strike out the reply, some brief observations are called for. The reply was a misnomer. It was a submission, not a pleading. It was argumentative. It took issue with the defence. It also included the proposal to add CPM Reviews as a respondent. To the extent that it took issue with the defence, it was unnecessary. “Allegations in the defence are in issue by force of the defence”: Cairns at [6.60]. The back-door proposal to add CPM Reviews via the reply was both ill-conceived and inappropriate.

117    Even if there were any merit in the draft grounds of appeal referable to this particular interlocutory application, I would refuse leave to appeal this part of the judgment. That is because the primary judge granted the applicant leave to re-plead. In those circumstances no substantial injustice could conceivably arise if leave were refused.

Conclusion

118    For all these reasons the leave application must be dismissed. Nevertheless, one of the orders Mr Dahler sought was an order vacating the hearing dates. As the pleadings need to be completely recast and as I was informed that no evidence has yet been filed, it seems highly unlikely that the matter will be ready for trial on 10 September, as the primary judge envisaged when the hearing dates were fixed. In these circumstances, I suggest that the parties confer with a view to making a joint approach to the Circuit Court to vacate the current dates and to make additional orders to progress the matter to trial. I note that Ms Keys indicated that she could get her pleadings in order within 14 days and file her affidavit evidence in the same time.

Costs

119    That leaves the question of costs. CPM Reviews applied for costs but advanced no submissions in support of that application. Ordinarily, that would be neither here nor there for the usual order would be for costs to follow the event. Here, however, if this is a proceeding “in relation to a matter arising under [the FW] Act”, then s 570 would operate to limit the circumstances in which a court can order a party to pay costs. In Construction, Forestry, Mining and Energy Union v CSBP Ltd (No 2) (2012) 202 FCR 149 the Full Court rejected an application to vary a costs order made against the union in reliance on the general power conferred by s 43(1) of the Federal Court of Australia Act 1976 (Cth). But the FW Act was amended in 2012 to overcome the effect of the decision in that case for proceedings commenced after the commencement of Part 1 of Schedule 10: see Fair Work Amendment Act 2012 (Cth) Sch 10 Pt 1 (which commenced on 1 January 2013); Explanatory Memorandum to the Fair Work Amendment Bill 2012, [305]–[308]. In these circumstances, if CPM Reviews’s application for costs is pressed, then I would require short submissions identifying the statutory basis for the application and the reasons why the Court should make the orders sought. If the respondents also intend to apply for costs, they should do likewise. The respondents and CPM Reviews should file and serve submissions within seven (7) days and Mr Dahler should have seven (7) days to reply.

Associate:

Dated:    2 September 2014