Federal Court of Australia

Keane v Woolworths Group Ltd [2023] FCA 379

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    Until 21 December 2020, the applicant was employed by the first respondent, Woolworths Group Limited at which time his employment was terminated. He filed an unfair dismissal application with the Fair Work Commission seeking reinstatement of his employment and compensation for lost wages.

2    On 18 March 2021, the parties participated in a Conciliation conducted by Commissioner Hampton of the Commission. Woolworths contend that at that Conciliation, the parties reached a binding settlement.

3    Subsequently, there was a dispute between the parties as to whether in fact a binding settlement had been reached.

4    Woolworths issued an application pursuant to s 587 of the Fair Work Act 2009 (Cth) seeking dismissal of the application on the basis that the parties had reached a binding settlement.

5    Commissioner Platt heard that application on 9 April 2021 and delivered a decision on 19 April 2021. The Commissioner found the parties had reached a binding settlement. Accordingly, the Commissioner dismissed the applicant’s unfair dismissal application (Decision).

6    The applicant applies for judicial review of that Decision.

7    The issue before the Court is whether the Commission’s Decision is affected by jurisdictional error.

The originating application for judicial review

8    The originating application does not identify the Act under which the application is brought. On its face the document is described as an “Originating Application for Judicial Review - Form 66 - Rule 31.01(1)”.

9    Rule 31.01(1) of the Federal Court Rules 2011 (Cth) (FCR) is the rule relating to applications for orders under s 11(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act): FCR Dictionary in Schedule 1 to the FCR.

10    The second respondent, filed a submitting notice but wished to be heard in relation to relief sought other than that available on judicial review and also allegations of fraud on the part of the Commissioner. I allowed the second respondent to make submissions on those points.

11    The second respondent submitted that the application was in the nature of an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) against the Decision. That is clearly correct.

12    An application under s 39B of the Judiciary Act requires an application in a different form: FCR 31.11, Form 69. Nonetheless, it seems to me that in substance, the applicant wishes to engage the jurisdiction of the Court so as to be treated as an application for judicial review under s 39B of the Judiciary Act.

13    I proceed on that basis.

14     The originating application identifies the decision which is sought to be reviewed as the decision of the Commission that the applicant had entered into an “unspecified binding verbal agreement”.

15    The originating application sets out six matters by which the applicant alleges he is aggrieved by the Decision and seven grounds.

Principles

16    An application for judicial review concerns whether there has been jurisdictional error. In a well-known passage in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179, the High Court said if an Administrative Tribunal falls into an error of law:

… which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

17    In Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, at [31] (Gleeson CJ, Gaudron and Hayne JJ) the High Court observed on the question of whether there was jurisdictional error on the part of the Full Bench of the Australian Industrial Relations Commission that:

There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council, it "misunder[stood] the nature of [its] jurisdiction ... or 'misconceive[d] its duty' or '[failed] to apply itself to the question which [s 45 of the Act] prescribes'. . . or ' [misunderstood] the nature of the opinion which it [was] to form'

(Citations omitted).

18    Not all errors of law are fatal to a decision. To comprise jurisdictional error, the error of law must also be material: Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [45]-[47]; (2019) 264 CLR 421, per Bell, Gageler & Keane JJ; Hossain v Minister for Immigration [2018] HCA 34; (2018) 264 CLR 123 at 130 at [17]-[31], per Kiefel CJ, Gageler and Keane JJ.

19    In SZMTA at [45]-[47], Bell, Gageler and Keane JJ said:

45.    Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

46.    Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

Background

20    Prior to the hearing on 9 April 2021, Commissioner Platt ordered a portion of the transcript of what occurred at the Conciliation Conference before Commissioner Hampton be provided to the parties.

21    At the hearing before Commissioner Platt, evidence was received from Woolworth’s solicitor, Ms O’Keeffe, as to what occurred at the Conciliation Conference. She was cross-examined by the applicant. In the Commissioner’s reasons, her evidence was described as being that the parties had reached a binding settlement had been recorded by Commissioner Hampton and that the agreement was reduced to writing by Ms O’Keeffe. However, the applicant refused to sign it.

22    Commissioner Platt referred to part of the transcript before Commissioner Hampton and reproduced part of the transcript in the Decision.

23    Commissioner Platt determined: at [27] of the Decision that: “… the terms of the binding settlement are clearly contained in the transcript and no further document need be prepared and as such, the parties should implement the agreed terms without delay.”

The parties’ submissions and consideration

24    The applicant reads his affidavit sworn 20 October 2022 and the annexures thereto. Much of the material in the applicant’s affidavit is inadmissible, however neither respondents took issue with me reading the affidavit on the application.

25    Woolworths reads the affidavits of Elizabeth Anne O’Keeffe affirmed 2 November 2022 and 8 April 2021 and the annexures thereto.

26    The originating application identifies six matters by which the applicant says he is aggrieved by what is described as the Decision and “conduct”. Upon reading those six matters it is apparent that the majority of the “conduct” about which complaint is made relates to the acts or omissions of Commissioner Hampton and not Commissioner Platt.

27    Woolworths submit that of the seven grounds upon which the applicant relies, the only matters which have the potential to amount to jurisdictional error are grounds one and seven. I accept that submission and will deal only with grounds one and seven.

28    The applicant made oral submissions in addition to the material contained in his affidavit and its annexures. Although explained to him that this hearing was not a review of the merits of his unfair dismissal application, nonetheless his submissions focused on the merits of that application. In particular, much of the applicant’s submissions were directed to what he considered was a conspiracy against him by amongst others, Woolworths, the South Australian Police Force, the Australian Defence Force and Adelaide University.

Ground one

29    Ground one alleges that the actions of the Commission were clearly prejudicial, biased and partial. In the context of this application, that can only be directed to the actions of Commissioner Platt. Nonetheless, Woolworths submit that when the matters to which Ms O’Keeffe deposes in her affidavits are considered, there can be no suggestion of Commissioner Hampton acting in a manner which was prejudicial, bias or partial.

30    The principles relating to bias and apprehended bias are well-settled.

Actual Bias

31    A claim of actual bias requires cogent evidence: R v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co-Pty Ltd [1953] HCA 22, (1953) 88 CLR 100, 116 (Dixon CJ, Williams, Webb and Fullagar JJ).

32    In Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1990) 81 FCR 71 (Wilcox, Burchett and North JJ), North J described actual bias in these terms: at p 134.

Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.

(Citations omitted)

33    In R v Rich (Ruling No. 21) [2009] VSC 32, [7] Lasry J said:

A party asserting actual bias on the part of a decision-maker carries a heavy onus; the allegation must be “distinctly made and clearly proved”. It has been said, and I agree, that a finding of bias is a “grave matter”, and cannot be made lightly. Apart from corruption, it is hard to think of a more serious allegation that can be made against a judge.

(Citations omitted)

34    In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 519 at [35]-[36], Gleeson CJ and Gummow J referred with approval to statements made by French J (as his Honour then was) at first instance in that matter in which his Honour had cited with approval judicial statements that actual bias involves a pre-judgement and an applicant must show that the decision maker “had a closed mind to the issues raised and was not open to persuasion by the applicant’s case” and that actual bias exists where “the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant”.

35    As the authorities referred to above show, the applicant must demonstrate by reference to cogent evidence that Commissioner Plant had pre-judged the action such that he had “… a closed mind to the issues raised and is not open to persuasion by [the respondents] case”; or that he had “… prejudged the case against [the applicant] or acted with such partisanship or hostility as to show that [he] had a mind made up against [the applicant] and was not open to persuasion in favour of [the applicant]”: Jia Legeng at [36] (brackets provided).

Apprehended Bias

36    The position is different with apprehended bias. In Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 the High Court said: at [11]-[13]

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, secondly, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. 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:

“The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”

(Citations omitted)

37    In Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337, [6], (Gleeson CJ, McHugh Gummow and Hayne JJ) the Court said:

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.

(Citations omitted)

38    Woolworths observed that after the conciliation conference before Commissioner Hampton, the applicant wrote to the President of the Commission in which he described his dealings with both Commissioners Hampton and Platt as having been both “respectful and helpful to me”. It also refers to the transcript of the hearing before Commissioner Hampton in which the Commissioner notes the recording has started and that the parties have resolved the applicant’s unfair dismissal application. It points to the applicant confirming on transcript that his unfair dismissal application had resolved.

39    Before Commissioner Platt, although the applicant asserted that the transcript before Commissioner Hampton did not record the truth, he was unable to say why: Application Book (AB) Part C p 219 [169]-[172]. More fundamentally, he agreed that his dismissal would be treated as a resignation for all future purposes as well as to other terms put to him by Commissioner Hampton: AB Part C p 219 [173]-[184].

40    If established, a finding of bias or actual bias would provide a ground for setting aside the Decision. There is nothing in the material put before the Court, or in the oral submissions put to me by the applicant, which leads me to conclude that either of the Commissioners displayed actual or apprehended bias (which is broad enough to include allegations of prejudice or partiality), as explained by the authorities to which I have referred above.

41    Ground one fails.

Ground seven

42    Ground seven contains a litany of complaints comprising Fraud; Negotiating in bad faith; Incompetence; Extortion; Concealing evidence; Coercion; Criminal gross misconduct; Averting the course of justice; Corruption; Apprehended bias; Surveillance; and Wiretapping.

43    These are very serious allegations. The second respondent submits that the appropriate course would be for the Court to not entertain the allegation of fraud. Putting aside the issue of apprehended bias with which I have dealt above, there is no material of whatever type capable of supporting any allegation of fraud. So too, there is no material of whatever type capable of supporting any of the remaining allegations in ground seven.

44    Ground seven fails.

Conclusion

45    It is for the reasons set out above that the application is dismissed.

Associate:

Dated:    2 May 2023