Federal Court of Australia

Sydney Trains v Australian Rail, Tram and Bus Industry Union [2022] FCA 1262

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s recusal application made on 23 October 2022 is dismissed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

Raper j

Introduction

1    By application dated 23 October 2022, the respondent (the Australian Rail, Tram and Bus Industry Union) seeks that I recuse myself from the determination of its application for expedition today and from hearing (if so determined) any separate question(s) as proposed by the parties in their competing short minutes provided to the Court on 20 October 2022. Sydney Trains adopts a position of neutrality but has taken the Court to a number of references in that regard, particularly with respect to certain aspects of three authorities.

2    With respect to the proceedings generally, the Court ordered that two separate applications (NSD 884 of 2022 and NSD 885 of 2022) be consolidated.

The Sydney Trains application

3    By application dated 18 October 2022, the applicants (Sydney Trains and NSW Trains), commenced proceedings claiming, inter alia, that action undertaken by the Union, on 3 August, 13 August, 31 August, 10 September and 11 September 2022 were not forms of “industrial action” within the meaning of s 19 of the Fair Work Act 2009 (Cth) (FW Act). Sydney Trains also sought a declaration that proposed action notified by the Union on 16 October 2022 proposed to be taken from 20 October 2022 (the proposed 20 October 2022 action) indefinitely was not “industrial action” within the meaning of s 19 of the FW Act.

4    Sydney Trains also sought a declaration that the proposed 20 October 2022 action was not “protected industrial action” within the meaning of s 408 of the FW Act. In addition, Sydney Trains claimed that various forms of action taken by the Union contravened s 343(1) of the FW Act, being with the intent to coerce Sydney Trains to (a) enter into an enterprise agreement with their employees on terms acceptable to the respondent in that period; and (b) not to exercise a workplace right to enter into an enterprise agreement in the form sought by Sydney Trains in that period.

5    Lastly, Sydney Trains claimed that the Union interfered with the gates, in Sydney Trains’ possession, which was intentional and constituted a trespass to goods. Sydney Trains sought injunctive relief restraining the Union from taking various forms of previous action taken, or the action proposed on 16 October 2022, together with orders for penalties and compensation (the Sydney Trains application)

The Union application

6    The following day, by application dated 19 October 2022, the Union commenced its own proceedings, seeking a declaration that the proposed 20 October 2022 action is the opposite of that claimed by Sydney Trains, namely is “industrial action” for the purpose of s 19 and, separately, is action authorised by the protected action ballot conducted following orders of the Fair Work Commission under s 443 of the FW Act.

7    The proposed 20 October 2022 action was to comprise:

(a)    interrupting their performance of work for the purposes of deactivating Opal Gates by pressing the ‘red deactivation button’ on any occasion the Opal Gates are not deactivated; and/or

(b)    engaging in the performance of work in a manner different from that in which it is customarily performed by deactivating the Opal Gates by pressing the ‘red deactivation button’ on any occasion the Opal Gates are not deactivated.

8    On 20 October 2022, both parties provided the Court with their competing short minutes as to how these proceedings should proceed. Both parties sought for the Court to deviate from the ordinary course and to determine separate questions.

9    Sydney Trains sought that the following questions be answered:

Question 1: Whether the actions notified by the [respondent] to the [applicants]:

Question 2: Whether the First Impugned Action was authorised by the protected action ballot ordered to be held on 24 January 2022 by the Fair Work Commission and the protected action ballot declared on 9 February 2022 and whether the First Impugned Action thereby met the additional requirement in section 409(2) of the FW Act?

Question 3: Whether the actions notified by the [respondent] to the [applicants] on 16 October 2022 in the form of station staff:

(collectively, the Second Impugned Action) are forms of “industrial action” within the meaning of that phrase in section 19 of the FW Act.

10    The Union sought its own single separate question which it claimed was appropriate in the circumstances:

Whether the action notified by the [respondent] to the [applicants] on 16 October 2022 in the form of station staff (being employees of the [applicants]):

is ‘industrial action’ for the purposes of s 19 of the Fair Work Act 2009 (Cth).

Application for recusal

11    By email, at 12:19pm, on Sunday 23 October 2022, the Union made an application that I recuse myself from both hearing the expedition application today and the proposed separate questions on the following bases:

(a)    The Union understood from Sydney Trains, that Sydney Trains proposes to call Ms Streimer today (which did not ultimately occur) in relation to the Union’s application for expedition of the determination of one or more of the separate questions and that Sydney Trains proposes to call both Ms Streimer and Mr Walsh in support of its case on the hearing of the proposed separate questions.

(b)    While I was a barrister, I was briefed in a matter to represent Sydney Trains and Mr Walsh: Salama v Sydney Trains [2021] FCA 251. In that matter, Sydney Trains was sued by its former employee, Mr Salama, for unlawful adverse action contrary to ss 340 and 346 of the FW Act and for breach of an applicable enterprise agreement contrary to s 50. Mr Walsh was sued as an accessory to Sydney Trains’ alleged contraventions under s 550 of the FW Act. Both Ms Streimer and Mr Walsh were witnesses in that matter.

12    As a consequence, the Union contends that an occasion of reasonable apprehension of bias arises as articulated in their letter attached to the 23 October 2022 email.

Relevant principles

13    The parties agree that as to whether there is an occasion of apprehended bias, the Court must consider whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ).

14    In addition, I was helpfully taken by counsel for the Union to the most recent High Court decision dealing with these specific principles, being Charisteas v Charisteas [2021] HCA 29; 393 ALR 389. In that respect, the Union’s counsel took me to paragraphs [11]–[13] of Charisteas:

11.    …

The apprehension of bias principle is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merit. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

12.    As five judges of this Court said in Johnson v Johnson, while the fair-minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”.

13.    Ordinary judicial practice, or what might be described in this context as the most basic of judicial practice, was relevantly and clearly stated by Gibbs CJ and Mason J in Re JRL; Ex parte CJL in 1986 by adopting what was said by McInerney J in R v Magistrates’ Court at Lilydale; Ex parte Ciccone in 1972:

(Footnotes omitted.)

15    Further reference was made to Ebner, in which Gleeson CJ, McHugh, Gummow and Hayne JJ said (at [6]):

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

(Footnotes omitted).

16    Their Honours continued (at [19]):

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

Consideration

17    At the commencement of the hearing of this application, I raised with the Union’s counsel that it may be premature to deal with the question of recusal as it related to the final determination of the separate questions. At the moment, neither the Court nor the Union have before it what is proposed to constitute the evidence of Sydney Trains to be relied upon by the two possible witnesses, being Mr Walsh and Ms Streimer. The Union prevailed upon me to nonetheless determine this question because of concerns it has in relation to how this matter can appropriately be case managed.

18    I accept that the application of the principle, as identified in Charisteas at [11], requires two steps:

(a)    the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and

(b)    the existence of an articulated “logical connection” between that matter and the feared departure from the judge deciding a case on its merits.

19    I note the first part of the recusal application relates to my hearing of any case management procedural matters concerning expedition and whether there should be separate questions. It arose from an anticipated apprehension that might arise today with respect to Ms Streimer’s evidence, and if in fact there were credit issues arising from her evidence. The Union has only had the benefit of understanding that evidence that is proposed to be relied upon by Sydney Trains today. I understood from the submission of the Union’s counsel that, given what is contained in her evidence (which largely attaches documents and raises matters which were uncontroversial), that no recusal application arises with respect to the determination of procedural matters namely whether there is a separate question and the application for expedition.

20    However, what does remain extant is a consideration of whether it is appropriate that I recuse myself from determining the separate questions in the future based on the Union’s apprehension of evidence being relied upon by Sydney Trains (as it relates to the evidence of Mr Walsh and Ms Streimer).

21    In that regard, I note that I was taken to a number of authorities by both parties for which I am grateful. What I do note in relation to them, of course, that it is not entirely unusual that a judge who was previously a barrister might be called upon to determine a matter that had some connection with their duties as a barrister in a previous life. In that respect, I note in particular that I was taken to aspects of the decision of Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94.

22    I was taken to aspects of that decision where there was an identification of the distinction that arises between a professional association between a judge and one of the parties in the litigation. In addition, I was taken to what one may take into account as to what a reasonable lay observer would consider as a reasonable understanding of the way in which barristers carry out their work. In particular, I was taken to [36]–[38] of that decision where Bell P (as he then was) opined:

36.    That the “reasonable observer” would have a reasonable understanding of the way in which barristers carry out their work was reiterated by Brereton J in British American Tobacco Australia Ltd v Peter Gordon [2007] NSWSC 109 (BATA), where his Honour noted (at [63]) that:

“[t]he hypothetical fair-minded observer is a lay person informed as to the relevant facts of the case, sufficiently knowledgeable to bring a rational and reasonable assessment to bear on the question of whether the judge might be biased, and having a basic knowledge of the nature of practice at the Bar - including that a barrister does not become identified with the client and is bound by rules of professional ethics, and that a judge is a professional who by training, tradition and oath is required to discard irrelevant, immaterial and prejudicial material and can be ordinarily assumed to comply with the judicial oath [Vakauta v Kelly (1989) 167 CLR 568, 584-5; Precision Fabrication Pty Ltd v Roadcon Pty Ltd (1991) 104 FLR 260, 264]; Aussie Airlines, 224; Taylor v Lawrence [2003] QB 528, 548 [61], 553F [69]; Johnson v Johnson (2000) 201 CLR 488, 493 [12]-[13]].”

37.    Similarly, in Aussie Airlines at 230, Merkel J noted that the “informed” observer could be presumed to have the “general knowledge” that when barristers act for a client they do so in a professional capacity, and could as easily have been briefed to fulfil the same task for the opposite side, that in accepting a brief the barrister does not become part of or identified with the client and has no financial interest in the outcome, and that the barrister acts as a member of an independent Bar, bound by a professional code of ethics.

38.    In BATA, the defendant applied to Brereton J to disqualify himself on the ground of apprehended bias said to arise from the circumstance that for over a period of about four months in 2003, when at the Bar, his Honour had acted for BATA in other proceedings, which the defendant contended involved substantially the same issue as that which would have arisen in the proceedings in question. At [85], Brereton J highlighted the following propositions in relation to apprehended bias and prior professional relationships between a judicial officer and a litigant:

“• A prior professional relationship between a lawyer and client – even a long and proximate one - does not generally justify a reasonable apprehension that the lawyer, on becoming a judge, will not determine proceedings to which the former client is a party impartially on their legal and factual merits, because the relevant fair-minded observer understands that counsel is not beholden to the client after the relationship is severed [Polites; Aussie Airlines; S&M].

• Even having given advice to the former client, present litigant on an issue that arises in the matter before the court does not generally give rise to such an apprehension, because a judge can be expected to approach afresh with an open mind from the bench issues on which he or she has previously advised, illuminated by evidence and argument [Polites; Kartinyeri; A1 v King].

• Nor does having advocated forensically a position on such an issue generally give rise to such an apprehension [Gascor]; indeed the position is a fortiori having given advice, because whereas giving advice involves counsel in reaching and expressing his or her own opinion on the issue, proper advocacy involves no more than presenting a tenable argument, which does not necessarily reflect counsel’s own opinion on the issue; advice therefore involves far greater potential for prejudgment than advocacy.

• However, if the judge may be considered to have an interest in the outcome – for example, if the appropriateness of the advice is in issue, or if it will be necessary to decide whether a course of conduct advised by the judge as counsel was legally effective or appropriate - a reasonable apprehension of bias will arise [Polites; A1 v King].

• Moreover, if the judge as counsel may reasonably be supposed to have gained special knowledge of the facts through prior involvement – including through privileged material in a brief – that may found a reasonable apprehension that as judge he or she may have in mind extraneous material not known to at least one party [S&R Investments], because a lay observer may reasonably think that a judge might not be able to put such information out of his or her mind.”

23    In this regard, I note that I was a barrister briefed to appear in the Salama case. I have taken into account what is extracted above from the authorities, and I accept that a reasonable lay observer will note that there is a distinction between a barrister and their client and that they do not become part of or identify with a particular client. I also note that, in this particular case – that it was some years ago, and it occurred with respect to an action that has no bearing on the current proceedings. Whilst I accept that I appeared for both Sydney Trains and for Mr Walsh, I maintain, consistent with the reasoning ascribed to Merkle J in [37] of Kostov (extracted above at [22]), that there is a distinction between a barrister acting on behalf of someone and, in effect, becoming affiliated with or becoming that client.

24    In addition, the subject matter of Salama was of a very different nature to this case. It involved an individual bringing an action against his former employer in relation to what he perceived to be adverse action and, in addition, claimed breaches of the enterprise agreement as it then was. It has no bearing on the subject matter of the current matter. There does not appear to be any suggestion that I have in my possession confidential information that would have bearing on this case by having acted in that case.

25    I do note the submission that was made by counsel for the Union in this regard, that a fair-minded lay observer may perceive that I have in my possession or, at least, may, in the future, become apparent, extraneous information as to the nature of Mr Walsh’s authority or reasons for accepting his evidence in the case at a later stage by reason of my involvement in the past. I also note, with respect to that that arises from an assumption that, in the future, his evidence and the evidence of Ms Streimer will be of such magnitude and of such likelihood that credit will be large questions that will be brought to bear in the determination of these separate questions.

26    I am not convinced that the evidence of those witnesses, given the nature of the separate questions, if they are determined by this Court, will be of a nature where the credibility of those witnesses will have any large bearing on the determination of the issues. Largely, as I understand it, there will be issues of construction that will arise with respect to a consideration of the action taken.

27    Whilst I accept the submission of counsel for the Union that, at its highest, there is a possibility that there could be a dispute, particularly with Mr Walsh’s evidence, regarding the nature of duties performed by station staff and by other persons in the determination of whether any of the action which is the subject of the separate questions is, in fact, lawful action as is required under the FW Act, I remain unconvinced that, in those circumstances, credit issues will arise.

28    By virtue of those matters, it is my view by application of the test as enunciated by the authorities, that a fair-minded lay observer would not, in these circumstances, reasonably apprehend that I might not bring an impartial mind to the resolution of the question that I am being required to determine. In this instance, I take into account those matters I have already identified as to what are included in the minds of a fair-minded lay observer as to the nature of a barrister’s practice and the distinction between them and their clients.

29    In addition, I note, as are set out at the commencement of my reasons, when dealing with relevant principles, that judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked, that judges do not select the cases that they will hear and that they are not at liberty to decline to hear those cases without good cause.

30    For these reasons, I decline the application that has been made by the respondent.

Associate:

Dated:    26 October 2022