FEDERAL COURT OF AUSTRALIA

Balasi v Sikh Mission Centre Sydney Inc [2018] FCA 107

ORDERS

THE COURT ORDERS THAT:

1.    The Application for leave to appeal from the interlocutory decision of the Federal Circuit Court of Australia on 7 December 2017 is granted.

2.    Orders 1 and 2 as made on 7 December 2017 are set aside.

3.    The appeal is otherwise dismissed.

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

REASONS FOR JUDGMENT

1    There is presently pending before the Federal Circuit Court of Australia a hearing in which Mr Himmat Singh Balasi seeks relief against the Sikh Mission Centre Sydney Inc as the First Respondent (the Sikh Mission Centre) and Mr Bawa Singh Jagdev as the Second Respondent. Mr Balasi, in very summary form, claims that the Sikh Mission Centre has underpaid him an amount in excess of $200,000. Contraventions of the Fair Work Act 2009 (Cth) are alleged.

2    An interlocutory application before the Federal Circuit Court is listed for hearing this afternoon. The final hearing is listed to commence before that Court on 5 March 2018.

3    In preparation of that case for hearing, Mr Balasi in late November 2017 served a Notice to Produce upon the Respondents.

4    On 7 December 2017 a Judge of the Federal Circuit Court “struck out” two paragraphs of the Notice to Produce and further ordered that “[n]o further notice to produce is to be issued by the applicant without further leave”.

5    Mr Balasi seeks (inter alia) leave to appeal. He contends that the documents identified in those paragraphs of the Notice to Produce which were struck out are “material relevant to an examination of the original or near original versions of particular documents” which are identified by reference to affidavits filed by the Respondents. In the event that leave to appeal is granted in respect to the orders made being set aside, Mr Balasis also seeks an order that the matter be remitted to the Federal Circuit Court differently constituted.

6    It is concluded that leave to appeal should be granted, the orders made by the trial Judge should be set aside but that the appeal should be otherwise dismissed.

The making of the orders as to the production of documents

7    The reason why the orders in respect to the Notice to Produce were made, without more, seems curious. The documents sought to be produced would appear to be relevant to the claims for relief being made by Mr Balasi. The documents, moreover, were identified with what would appear to be sufficient particularity to enable them to be readily identified, collated and made available to the Court and presumably thereafter to the parties. No objection had been taken on behalf of the Respondents as to the documents not being relevant.

8    The orders were also made without Counsel for Mr Balasi being afforded any real opportunity to develop submissions as to why the two paragraphs of the Notice to Produce should not be struck out.

9    The two exchanges of relevance to the orders made, and the extent of the submissions advanced to the trial Judge, took place on 20 November 2017 and again on 7 December 2017.

10    On the first occasion, there was the following exchange between the Court and Counsel for Mr Balasi:

HIS HONOUR: Mr Shariff, whilst I fully recognise that there are benefits that can be obtained from the issue of subpoenas and the exploring of electronic material, this is a case in respect of which there is already what I will call a parapluie of material for any cross-examiner to be able to explore the case. I think I would require some persuasion that I should permit the case to turn into a forensic case about the genuineness of particular document. You may, in cross-examine, in succeed in establishing it, but I don’t intend facilitating what I will call a massive discovery exercise in a case where costs are recoverable on either side.

MR SHARIFF: Your Honour, I don’t make the submission lightly. I am telling your Honour that we have serious concerns, and I can take you to a particular document, there are others, that raise, on our side, serious concerns about the provenance of documents that have been presented to your Honour as being true. And we have serious concerns about their provenance, and the only way to test the credit, before I put serious allegations to people as to the provenance of those documents, is to examine, as not unusually occurs, the original electronic files. Now, if they can be produced to us in some way. We’re happy to write to the respondents, in the first instance, identifying what we propose, but what we might need to do, your Honour, is to interrogate those documents. So what I’m saying is we should be in a position to write to our opponents about that and to have subpoenas ready to be issued by the end of this week.

HIS HONOUR: Well, I may permit that to be done, but it may be on terms in relation to costs.

MR SHARIFF: Your Honour, we’re happy to engage in a discussion with my learned friend and his side about what it is that we have in mind about examining the original of a document. It would be – in one sense, this sounds like it’s more involved than it actually is. What we have in mind is having someone look at the document, the original of the document, electronically on the computer on which it was created so one can ascertain, from looking at it, the metadata as to the date of its creation.

HIS HONOUR: All right. So is one document in that category, or how many?

MR SHARIFF: There are a few documents and it would be better for me not to do this on the run, but that we write to our opponents about that.

11    On the second occasion when the orders now sought to be impugned were made, there was the following exchange between the Court and then Counsel for Mr Balasi:

HIS HONOUR: Well, I’m going to hear you now - - -

MS BULUT: Yes, I can - - -

HIS HONOUR: - - - as to whether or not I should strike out paragraphs 6 and 7 under rule 15A.09. What do you wish to say as to why I should allow them?

MS BULUT: Paragraphs 6 – or categories 6 and 7 deal with the issue raised by Mr Shariff on the last occasion, which goes to the question about the concerns that the applicant has with the authenticity of the number of documents which were produced.

HIS HONOUR: It cannot possibly be the case that the scope of documents that are identified there all fall within such an issue. So on the face of it, it doesn’t reflect what I identified on the last occasion. Is there anything else you wish to say?

MS BULUT: Yes, so the – so category 7 specifically is quite targeted and relates to six documents on my count. And one of those documents was specifically identified by Mr Shariff, but Mr Shariff did foreshadow that there are a number of other documents that we wish to take an issue with in terms of the authenticity. So we’ve identified there six precise documents that were annexed to affidavits or which were produced to the applicant in response to a notice to produce. And so category 7 we say is limited to that extent because all we seek is an electronic copy of six documents which are either annexed or produced by the other side.

HIS HONOUR: Yes. Ms Bulut, I’m sorry, I propose to strike out paragraphs 6 and 7. They are way beyond what I anticipated. I don’t propose to grant leave. I propose to make the following orders:

(1)    The notice to produce filed on 29 November 2017, paragraphs 6 and 7 are struck out.

(2)    No further notice to produce is to be issued, without leave of the court, by the applicant.

12    Counsel for Mr Balasi rightly accepted that in order to obtain leave to appeal and be successful in setting aside the two orders in respect to production he had to establish error of the kind articulated by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504 to 505. Their Honours there observed:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

13    Considerable reservation is expressed as to whether all that the present application for leave exposes is disagreement with the orders made by the trial Judge. In different circumstances, many Judges may well not have made the same orders or orders in the same terms. Reservation is expressed as to whether the trial Judge applied a “wrong principle”.

14    But Counsel for the Respondents supported the submission being advanced on behalf of Mr Balasi. Counsel for the Respondents expressly embraced the proposition that the trial Judge made an error of the kind set forth in House v The King.

15    Notwithstanding the reservation expressed as to whether the primary Judge so erred that his orders made in respect to a matter going to the practice and procedure of the Court exposed a House v The King error, the submission jointly advanced by the parties to the litigation should be accepted. Although a trial judge need not give reasons for interlocutory decisions such as the present (cf. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 per McHugh JA), such limited consideration as was given to the orders made exposes (at least) a rather peremptory consideration of the case sought to be made by Counsel for Mr Balasi and a failure to give any real consideration to the seemingly immediate relevance of the documents sought to be produced or the attitude of the Respondents which was (after all) the party required to produce the documents.

16    Counsel for the Respondents, it should be noted, has more recently produced the documents sought in the Notice to Produce. Those documents, Counsel maintained, were a complete answer to the Notice to Produce with the exception of one document which could not be located. Although the Respondents had been required to produce to this Court the documents sought by the Notice to Produce, those documents were independently of any such requirement provided to Counsel for Mr Balasi and produced such that they could be employed in the Federal Circuit Court’s proceedings should the occasion arise.

17    Although on one view the production of the documents may be seen as rendering moot any need to set aside the first order made on 7 December 2017, the making of the first order was but a precursor to the second. If the first order is vitiated by error of the kind identified in House v The King and should be set aside, there remains no good reason why Mr Balasi should not thereafter be free to issue any such further Notice to Produce as his legal advisors consider appropriate.

18    Leave to appeal should be granted and orders made that orders 1 and 2 of the orders made on 7 December 2017 be set aside.

19    Subject to the resolution of the order to be made on remitter, the making of such future interlocutory orders (including orders as to the future production of documents or the admissibility of the documents already produced) obviously remains a matter within the discretion of the trial Judge.

Remittal to a court differently constituted?

20    The remaining matter to be resolved is the application made on behalf of Mr Balasi that the proceeding be remitted to the Federal Circuit Court differently constituted. Counsel for the Sikh Mission neither consented to nor opposed the application. That application itself raised two separate issue – namely:

    the correct identification of the principle to be applied; and

    the application of the principle to the facts that had to date emerged in the Federal Circuit Court proceeding.

21    As to the former matter, Counsel for Mr Balasi maintained that the order sought could be made simply if this Court formed the view that it was in the “interests of the administration of justice” to do so. So expressed, it was submitted that it was not necessary to constrain the exercise of the power to make such an order to circumstances where a reasonable apprehension of bias could be made out. Reliance was placed by Counsel upon the observations of Kyrou J in Vegco Pty Ltd v Gibbons [2008] VSC 363 and their endorsement by Emerton J in Barro Group Pty Ltd v Brimbank City Council (No 2) [2012] VSC 199, (2012) 36 VR 281. In Barro Group, Emerton J had observed (at 306):

[5]    As Kyrou J observed in Vegco Pty Ltd v Gibbons:

Successful applicants in judicial review and appeal proceedings to the trial division of this Court frequently seek remittal to a differently constituted primary decision-maker when the primary decision is set aside and the matter is remitted. If orders are made by this Court as a matter of course requiring decisions to be remade by a differently constituted primary decision-maker, this may have serious resourcing implications for primary decision-makers and add to the costs and delays of the decision-making process. For the Court to be persuaded to order remittal to a differently constituted primary decision-maker, good reason for doing so, based on established principles, must be shown by the party seeking such an order.

[6]    Kyrou J described the guiding principle in situations of this sort as follows:

… The guiding principle is that remittal will be to a differently constituted primary decision-maker where there is some feature of the conduct or reasons for decision of the primary decision-maker which would render it unfair to the successful party or give the appearance of unfairness to that party (whether arising from strongly expressed views on key issues, adverse findings on the credit of witnesses, apprehended bias or otherwise) if the matter were remitted to the same decision-maker or where it would be impracticable for the same primary decision-maker to redetermine the matter.

(Footnote omitted)

22    Reliance was also placed upon the following observations of Murphy J in MZZXM v Minister for Immigration and Border Protection [2016] FCA 405:

[119]    As the learned authors Aronson and Groves said in Judicial Review of Administrative Action (5th ed, Lawbook Co, 2013) at [9.280]:

The High Court has accepted that courts empowered to order that a decision be remitted to a differently constituted decision-maker should not exercise that power automatically but rather where it is appropriate “in the interests of justice.” This protean test is usually satisfied when the first decision-maker has made a finding of credibility, indicated a preference for the evidence of one witness, failed to provide procedural fairness to a party or engaged in some form of conduct or finding that might lead the hypothetical observer to conclude that the original decision-maker might not approach the remitted matter with an open mind.

23    In order to make out a case as to there being a reasonable apprehension of bias, one formulation of the principle to be applied is whether the mind of the trial judge is “open to persuasion”: cf. Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, (2001) 205 CLR 507 at 531. Gleeson CJ and Gummow J there observed:

[71] … Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias…

See also: McGovern v Ku-ring-gai Council [2008] NSWCA 209 at [14] to [24], (2008) 72 NSWLR 504 at 508 to 509 per Spigelman CJ.

24    Some reservation is expressed as to whether their Honours in Vegco, Barro Group or MZZXM were actually formulating the principle to be applied more broadly than that to be applied when determining whether there is a reasonable apprehension of bias.

25    But time does not permit in the present proceeding a more considered review of the authorities. It is sufficient to conclude that the facts of the present case do not warrant the order now sought. Whichever principle is applied, assuming there to be a difference, the result is the same.

26    To support the order sought upon remittal of the proceeding, Counsel for Mr Balasi relied upon:

    the circumstances in which the trial Judge reached the conclusion that there was to be no production of documents in accordance with the Notice to Produce, those circumstances including the very limited opportunity extended to Counsel to develop submissions going to the relevance of the documents sought and the immediate assessment made by the trial Judge that the documents sought should not be produced;

    the circumstances in which the trial Judge not only ordered that the two paragraphs of the Notice to Produce be struck out but that no further Notice to Produce was to be served without leave, those circumstances including the fact that directions had been previously made for the grounds of any objection on the part of the Respondents to the production of documents to be given to Mr Balasi and without giving any apparent consideration to either:

    the position to be adopted by the Respondents to production; or

    the fact that Counsel for Mr Balasi in submission had informed the Court that there had been discussions between the parties to “see if the parties can come to some kind of a resolution without troubling the court with these objections” and without affording the parties an opportunity to mutually resolve any question as to production.

    the absence of any apparent consideration being given to the relevance of the documents sought to be produced and their utility in advancing the case sought to be pursued by Mr Balasi; and

    observations made by the trial Judge on 9 October 2017 as to why the solicitors appearing for Mr Balasi, namely the Legal Aid Commission, were “involved in the proceedings” and again on 20 November 2017 expressing the view that their involvement was “potentially relevant” to an issue to be resolved.

27    Notwithstanding the force of the cumulative effect that such matters may have on any perception as to the hearing being continued before a trial Judge whose mind is not “open to persuasion”, it is concluded that such matters do not now warrant the making of an order that the proceeding continue before the Court differently constituted. Expressed in terms more frequently employed in cases dealing with a reasonable apprehension of bias, it is not considered that MrBalasi has “firmly established” (cf. R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553 to 554 per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J) that the trial Judge will not approach the matter with a mind “open to persuasion”. Although the matters relied upon by Mr Balasi occasion considerable disquiet and would justifiably occasion in the mind of Mr Balasi considerable misgiving as to the future conduct of the proceedings, they fall short of “firmly establishing” a basis upon which the order sought should be made.

28    In reaching this conclusion, consideration has been given not only to the factors relied upon by Mr Balasi, but also such further matters as:

    the fact that the second of the two orders in respect to production of documents being expressed in terms of “without further leave”;

    the fact that during the exchange on 20 November 2017 when views were being expressed as to the extent to which cross-examination would be permitted going to the “genuineness of [a] particular document”, those views were expressed in terms that the trial Judge would “require some persuasion” as to what should be permitted; and

    the fact that the trial Judge during that exchange on 20 November 2017 did give some consideration to whether the existing “parapluie of material” enabled cross-examination.

Such factors, albeit not of themselves decisive, do expose the trial Judge leaving open for further consideration the prospect of adopting a different course to the one he then had in mind and some assessment as to the effect of the orders made upon the party seeking production. Such matters are inherently matters for a trial judge to consider.

CONCLUSIONS

29    Leave to appeal should be granted and the two orders as to the production of documents should be set aside.

30    No order should be made that the existing constitution of the Federal Circuit Court should be interfered with by order of this Court.

THE ORDERS OF THE COURT ARE:

1.    The Application for leave to appeal from the interlocutory decision of the Federal Circuit Court of Australia on 7 December 2017 is granted.

2.    Orders 1 and 2 as made on 7 December 2017 are set aside.

3.    The appeal is otherwise dismissed.

Associate:    

Dated:    16 February 2018