FEDERAL COURT OF AUSTRALIA

Bryant v United Voice NSW Branch [2019] FCA 460

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of and incidental to the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia, dismissing an amended statement of claim brought by the appellant, Ms Rebecca Bryant, against her former employer, United Voice, a services industry union. Ms Bryant was employed in the New South Wales Branch in Sydney. Ms Bryant alleged conduct on the part of United Voice in breach of direct or indirect disability discrimination, contrary to the Disability Discrimination Act 1992 (Cth). In the alternative, she alleged breach of contract.

2    Only the most formal or benign aspects of the amended statement of claim before the primary judge pleading was admitted, with the balance being denied outright or a very different version of events being pleaded. That meant that Ms Bryant needed to be able to prove all the key aspects of her case.

3    Ms Bryant’s disability discrimination case heavily depended on her own evidence, with limited corroboration, to provide both a version of events, and a character and dimension to what occurred that was not readily apparent on the objective documentary records at the time. That is not surprising, in that the records of United Voice might be seen as ordinarily unlikely to contain admissions of discrimination. In those circumstances, this was very much a case that turned upon Ms Bryant’s credit as a witness. Unfortunately for her, the primary judge did not find her a credible witness, and placed little stock in the evidence of her main supporting witness.

4    The primary judge appears to have been determined not just to hear the case in a single day, but to deliver an ex tempore judgment the same day, concluding, it seems, at about 5.40 pm. That particular manifestation of the exercise of judicial power, and the way in which it was conducted by his Honour, is the wellspring of the amended notice of appeal and grounds of appeal. The live issues on this appeal concern whether it has been established that his Honour crossed the line from the expedient and perhaps even unsatisfactory conduct of a case, to the point of vitiating the result. For the reasons that follow, and not without some misgivings, I am not satisfied that Ms Bryant has made good any of the appealable errors upon which she relies.

Before the primary judge

5    In pre-trial written submissions, Ms Bryant characterised the facts of her case as her being sent on leave and paid, by an insurance company, an amount constituting a percentage (in fact 75%) of her income. She argued that the reason for the leave and the claim on the insurance policy was that she was suffering from a disability as defined in s 4 of the Act.

6    Ms Bryant had been dismissed by United Voice because she would not agree to her medical records being re-presented to its officials, and would only agree to them being presented to a medical examiner appointed by it. Her employment was therefore terminated, with her being paid for five weeks in lieu of notice. She commenced unfair dismissal proceedings, which settled. The proceedings below were therefore confined to an application for compensation, loss and damage within her prior employment up to the time immediately prior to her dismissal. The process started with a complaint to the Australian Human Rights Commission made some three weeks before her dismissal.

7    Ms Bryant’s pre-trial submissions stated the questions that she contended needed to be addressed by the primary judge. They may be summarised as follows:

(1)    Were the acts or omissions of United Voice, in removing her from the workplace and partially compensating her by insurance payments, of a kind that would not have been taken against a person who did not have a disability that necessitated psychological treatment?

(2)    Were the actions in refusing to permit her to return to work from early 2016 taken wholly or partly because of her disability?

(3)    Was she unable to perform the inherent requirements of the job; and if so, was that the fault of United Voice in insisting that medical evidence be provided to their untrained officials rather than to an independent medical examiner?

(4)    Would she have been required to provide the medical evidence but for her pre-existing medical condition?

(5)    Had she suffered loss or damage arising from her disability and if so, was she entitled to compensation?

8    Ms Bryant’s pre-trial submissions also asserted an implied term in the contract of employment that United Voice would act fairly and in good faith and to exercise any rights or duties honestly and reasonably, and that such a term was breached. The primary judge found that no such term was in this contract, but even if it had been, it was not breached. The latter finding was not challenged independently of the other grounds of appeal.

9    The pre-trial submissions for United Voice presented a starkly different case. The part of those submissions that summarised the facts (from [16]-[42]) were reproduced by the primary judge in his reasons at [3], describing them also as “findings” that his Honour made. While this was a less-than satisfactory way in which to deal with contested questions of fact, and to purport to adjudicate upon them, that is not a point taken directly in this appeal, and rises no higher than a sense of unease about a possible failure to ensure that justice is not just done, but seen to be done.

10    The key point to be derived from the United Voice pre-trial submissions is the contention that it had no knowledge of any disability suffered by Ms Bryant before she went on sick leave; and that it had only a fairly general understanding later in time, obtained only derivatively from limited information furnished by the insurance company. The insurance company refused to provide any medical evidence without the consent of Ms Bryant, which was not forthcoming. United Voice contended that it was unable to ascertain the precise nature of her illness or asserted disability. A contentious issue that emerged later was the insurance company paying out the last six-month period covered by the insurance policy from February to August 2016, whereas Ms Bryant had a one-sentence medical certificate from a Dr Nguyen at a medical centre dated 8 April 2016 that said she was “fit to return to normal duties” from that day.

11    The primary judge had before him a large volume of documentary material (over 1,000 pages of which were in the appeal books), including affidavits from four witnesses (two for each party), each of whom were cross-examined subject to a half hour limit per witness imposed by his Honour (with leave to seek more time, which was sought by the respondent, but not sought by Ms Bryant). His Honour formed a positive view about the United Voice witnesses, and a negative view about Ms Bryant and her supporting witness, Ms McKenzie. His Honour described Mr Bryant and Ms McKenzie as not being impressive.

12    The primary judge found that Ms McKenzie’s evidence about a United Voice witness taking photographs was inconsistent with one such photograph and inconsistent with Ms Bryant’s version of events. His Honour described Ms Bryant as highly unimpressive and did not accept her evidence as being truthful, or in particular respects as being credible, plausible or consistent with documentary evidence tendered by United Voice. His Honour adverted to evidence that she had given that she had decided in 2015 not to return to work at United Voice, but nonetheless had engaged in a calculated endeavour to obtain the benefits for which she knew that she could not meet the eligibility criteria. Numerous adverse findings about the claims made by Ms Bryant flowed from this view of her evidence. It will only be necessary to return to those findings to the extent that they arise in relation to the grounds of appeal.

The grounds of appeal

13    The six grounds of appeal assert error by the primary judge in:

(1)    delivering judgment ex tempore, asserting this was done without fully hearing the submissions of the parties, or considering the evidence, as specifically particularised;

(2)    conducting the hearing so as to create an apprehension of bias, as specifically particularised;

(3)    finding contrary to law that the contract of employment did not include a term of “fidelity and good faith”;

(4)    relying on a significant matter upon which his Honour partly based his decision to reject Ms Bryant’s claim, and then removing reference to that matter from the published reasons – the material pleaded as having been omitted was said to be an assertion by the primary judge of insurance fraud on the part of Ms Bryant;

(5)    misstating a material fact concerning the refusal by Ms Bryant to provide medical records, referring to [12] of the published reasons; and

(6)    misstating a material fact in holding that Ms Bryant had not been subject to a threat of expulsion from membership of United Voice for non-payment of membership subscriptions, referring to [10] of the published reasons (corrected in oral submissions to the last sentence of [9] and the first sentence of [10]).

14    A significant part of the particulars to ground 2, and all of ground 4, depend on establishing that particular material that was contained in the ex tempore reasons for judgment were removed from the final published reasons. To make good that assertion, Ms Bryant first needed to prove what had been removed from the ex tempore reasons. I was informed from the bar table that this was sought to be achieved in the first instance by requesting, several times, a copy of those ex tempore reasons, but being told that they were not available.

15    No leave was sought to issue a subpoena to the Federal Circuit Court to have produced either the sound recording or the court-reporter transcript of those ex tempore reasons. Instead, a solicitor’s affidavit was sought to be relied upon, which asserted by way of inadmissible conclusory statements the nature and character of what was said and omitted, but not the text or words to the effect of what was said. Unsurprisingly, that evidence was rejected. Accordingly there was no evidence of anything of substance being omitted, let alone material that was of a nature that could in some way have affected the outcome. Given that lack of evidence, ground 4 must fail, and the scope of ground 2 must be greatly confined.

16    Ms Bryant concedes that grounds 5 and 6 cannot be sustained, because, respectively, the primary judge’s published reasons at [12], the last sentence of [9] and the first sentence of [10], do not contain the asserted misstatements. Grounds 5 and 6 must therefore fail.

17    It follows that the only grounds of appeal that require further consideration are grounds 1, the balance of the particulars to ground 2, and ground 3.

Ground 1

18    Ground 1 of the appellant’s amended notice of appeal reads as follows:

The Primary Judge delivered his judgment ex tempore, without fully hearing the submissions of the parties, or considering the evidence.

Particulars

i.    The entire proceeding, including four witnesses, was compressed by His Honour into a single day;

ii.    His Honour required closing submissions to commence immediately at the conclusion of the evidence, at approximately 5 pm on the hearing day, and then immediately delivered his ex tempore judgment, after declining to hear the Respondent, dismissing the Application and awarding costs, at about 5.20pm.

19    It is noteworthy that this ground makes no express allegation of a denial of procedural fairness. In the absence of such an allegation, or some other identification of the precise nature of the legal error asserted, it is difficult to understand the proper basis for appellate intervention. However, it is not necessary to delve further into what might have been pleaded by way of a viable ground of appeal, because of a failure by the appellant to identify precisely how the primary judge’s approach was wrong. As noted by Flick J in SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [30], “judicial attempts to revise ill-drafted Grounds of Appeal run the very real risk of prejudicing the impartial administration of justice”. This is particularly so in circumstances where the appellant was legally represented on appeal.

20    There was no evidence, and no other clear identification of what submissions were not heard or would otherwise have been able to be made, or of what evidence was not considered (as opposed to merely not being specifically referred to in the published reasons for judgment). The primary judge had the benefit of written submissions. He did not need to hear further from United Voice. I was not taken to the oral submissions made on behalf of Ms Bryant and I was not informed with any detail or particularity what more needed to be said. The part of the transcript I do have made it clear that his Honour told Ms Bryant’s solicitor that her credit was the key issue. That his Honour proceeded to deliver an ex tempore judgment is not, without more, sufficient grounds for complaint.

21    Given that the asserted factual matters relied upon have not been established, ground 1 must fail.

Ground 2

22    Ground 2 of the appellant’s amended notice of appeal reads as follows (verbatim):

The Primary Judge conducted the hearing in such a way as to create an apprehension of bias

Particulars

i.    His Honour conducted a significant proportion of the cross examination of the Appellant, himself.

ii.    Without foundation, and without it being suggested by the Respondent, His Honour erroneously asserted that the Appellant had possibly committed a crime, and so proceeded to “warn” the Appellant as to the right to not answer on the grounds of self-incrimination.

iii.    His Honour relied on this baseless assertion in arriving at his judgment, when delivering judgment ex tempore.

iv.    His Honour asserted, without foundation, and for no reason apparent to a reasonable observer, in the context of his assertion of a “crime”, that the Appellant and her supporting witness were not witnesses of truth, but a witness for the Respondent, who was hesitant, argumentative, and not credible in her answers, was.

23    Particulars (ii) and (iv) arose from a line of cross-examination of Ms Bryant by counsel for United Voice. In substance, counsel was suggesting that Ms Bryant had accepted and kept an insurance payment for a six month period from early February to August 2016 upon the basis of not being fit for work, while having a medical certificate dated 8 April 2016 to the effect that she was fit to resume normal duties from that day. The questioning was possibly heading in the direction of suggesting that she had dishonestly withheld the medical certificate from the insurance company. The primary judge, evidently seeing that possibility, interrupted to give her a warning that she did not have to answer any questions that might incriminate her. There was nothing wrong with his Honour doing so. To the contrary, once his Honour perceived the risk of this taking place, s 132 of the Evidence Act 1995 (Cth) compelled that course. It follows that particulars (ii) and (iv) are without substance on the question of apprehended bias.

24    Particular (iii) above was not supported by any evidence of a reliance by the primary judge on any assertion, let alone any “baseless assertion”, that went beyond what was contained in the published reasons: see [15] above. That ground therefore cannot be considered further.

25    Particular (i) above relies upon an assertion that the primary judge conducted a “significant proportion” of the cross-examination of Ms Bryant. However the written submissions for her, under the heading “Advocacy by His Honour, and appearance of bias” identify comments made by his Honour as to the relevance of aspects of the cross-examination by Ms Bryant’s solicitor of the two United Voice witnesses (at transcript pages 84 and 112-113) and questions asked by his Honour of one of those witnesses (at transcript page 92).

26    Despite expressly advising the solicitor appearing for Ms Bryant that I did not consider it the role of a Court exercising appellate jurisdiction to closely review the transcript of the primary proceedings to identify evidence of any appealable error, I was taken to very little of the transcript containing questions of her by the primary judge. And despite that admonition, I have in fact conducted an examination of that questioning by his Honour.

27    The cross-examination of Ms Bryant by counsel for United Voice went from transcript pages 20 to 65, followed by re-examination from pages 66 to 78. Within the 45 or so pages of cross-examination, quite a large number of questions were asked of her by the primary judge in 10 passages, amounting in aggregate to some three pages of transcript. Further questions were asked by his Honour during re-examination.

28    It is fair to say that his Honour engaged in more active questioning than is generally desirable, but no attempt was made to show how it was that this crossed the line and amounted to a sufficient basis for apprehended bias. The fact of a trial judge asking too many questions and being too involved in the advocate’s role might, in some cases, depending on text, context and any other salient features, give rise to such a reasonable apprehension on the part of the hypothetical appropriately informed and fair minded lay observer that the judge might not bring a “fair, impartial and independent mind to the determination of the matter on its merits”: see ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35].

29    A conclusion of apprehended bias is extremely serious. It is not a conclusion to be reached as a matter of impression or even a general sense of a judge perhaps finding one party’s case inherently more appealing. That is so because an allegation of such prejudgment entails the suggestion that a judge has “failed to honour his or her judicial oath as such might be questioned by the fair-minded observer”: ALA15 at [36(b)]. It therefore requires an identification of what has been said that might lead the judge to decide the case other than on its legal and factual merits. There must be an articulation of the logical connection between the conduct in question and the feared deviation from the proper course of deciding a case on its merits: ALA15 at [36](a)]. Such a process was adverted to in the hearing of this appeal, but never carried out. Such a characterisation was never demonstrated as being warranted.

30    In AXQ15 v Minister for Immigration and Border Protection [2016] FCAFC 73, the Full Court considered an appellant’s contention that the decision of the primary judge was infected with a denial of procedural fairness arising out of apprehended bias. The Full Court described what transpired as follows (at [32]):

There is no doubt that the primary judge was probing both parties to address the matters of concern to his Honour, and in so doing revealing the way in which key issues and arguments were being received and interpreted by him. Speaking generally, a judge may properly conduct a hearing in this way, having regard to contemporary case management principles. In this context, exchanges between the bench and one party at the bar table may at times appear somewhat one-sided to an opposing party; and upon reflecting on an adverse ex tempore judgment as in this case, the losing party may be tempted to attribute the loss to the primary judge having a closed mind. This is, however, simply not enough. As was noted in Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 493 [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ:

… At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. … Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

31    What took place in this case has not been shown to rise above this description of what transpired in AXQ15, albeit that the intervention in this case may be seen to be inherently more troubling.

32    The level of intervention by the primary judge in this case was excessive and inappropriate. It may well have left Ms Bryant with a sense that she was not given a fair go. But apprehended bias has not been made out upon this basis.

33    As none of the matters particularised to establish apprehended bias have been made out, ground 2 must fail.

Ground 3

34    Ground 3 of the appellant’s amended notice of appeal reads as follows:

The Primary Judge held contrary to law that the contract of employment did not include a term of fidelity and good faith;

Particular

Paragraph 15 of His Honour's written Judgment.

35    The primary judge’s reasons at [15] were as follows:

I reject the submission that the contract of employment included a term of fidelity and good faith as pleaded by the applicant. Further, I find there was no conduct by the respondent that reflected any want of good faith or fidelity in the dealings with the applicant.

36    Ms Bryant contends that United Voice and the primary judge erred in basing that conclusion on what was said in Commonwealth Bank of Australia v Barker [2014] HCA 32; 253 CLR 169. She relies upon [42] and [107] of Barker to assert that the implication of a “term of fidelity and good faith” remains open. I am prepared to assume, without deciding, that the question of whether a duty of good faith may be implied into an employment contract remains unresolved: Marmax Investments Pty Ltd v RPR [2015] FCAFC 127; 237 FCR 534 at [42], citing Barker at [123]. However, any such implication cannot be at large, divorced from the legal test for implying a contractual term. Until decided otherwise, it must turn on the particular contract in question and the basis asserted for a term of good faith to be implied.

37    In oral argument for Ms Bryant, the following passage of the United Voice terms and conditions of employment was identified as giving rise to an implied term of good faith:

Due to a range of factors (e.g. conventional practice; special circumstances; entitlement generally available to all workers in a particular location), a particular condition or entitlement may be varied or may be applied differently in a particular Branch/National Office. Employees should check with their Branch Secretary to determine whether alternative or additional local conditions apply.

38    I am unable to see any basis for implying a term of good faith from such a specific clause to do with variations in conditions and entitlements across a national organisation.

39    In respect of the appellant’s reference to “a term of fidelity”, it appears that she has, in submissions, and during oral argument, conflated the distinct concepts of an employee’s duty of fidelity and the proposed implied duty of good faith. This inference is supported by there being no reference to the concept of fidelity in the paragraphs of the judgments in Barker cited by the appellant. Further, as the plurality recognised in Barker at [30], [63] and [100], a duty of fidelity is owed by the employee to employer, which does not assist the appellant in this appeal.

40    The second limb of the primary judge’s reasons is in any event fatal to this ground of appeal succeeding: the primary judge found that there was no breach of such a contractual term even if it was implied or otherwise found to apply.

41    It follows that ground 3 must also fail.

Conclusion

42    The appeal must be dismissed. Ms Bryant must pay United Voice’s costs.

Associate:

Dated:    4 April 2019