F100422664

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES HENRIETTA MCCARTHY

APPELLANT

 -and-

 SIR CHARLES GAIRDNER HOSPITAL

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  CHIEF COMMISSIONER W S COLEMAN

  SENIOR COMMISSIONER A R BEECH

DELIVERED TUESDAY, 1 JUNE 2004

FILE NO/S FBA 1 OF 2004

CITATION NO. 2004 WAIRC 11634

_______________________________________________________________________________

Catchwords  Industrial Law (WA) – Application to Commissioner at first instance to disqualify herself – Application dismissed – Appeal to Full Bench – Appeal against a finding – Application to adduce fresh evidence – Application for discovery – Allegations of bias – Credibility of witnesses at first instance – Alleged errors in transcript at first instance – Public interest issues – No error at first instance – Appeal dismissed – Industrial Relations Act 1979 (as amended), s7, s44, s49, s49(2a), s49(4)

Decision  Appeal dismissed

Appearances

Appellant   Ms H McCarthy, on her own behalf

Respondent   Mr N Monahan (of Counsel), by leave

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1          This is an appeal against the decision of a single Commissioner.  The appeal is brought pursuant to s49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).

2          The decision appealed against is constituted by an order dismissing an application by the appellant that the Commissioner at first instance disqualify herself from hearing and determining an application to the Commission brought pursuant to s29(1)(b)(i) of the Act, for bias.

3          The Commissioner, having heard witnesses and submissions, dismissed the application by order made on 12 January 2004 (see page 91 of the appeal book (hereinafter referred to as “AB”)), and issued her reasons for decision.

4          It is against that decision that the appellant now appeals on the following grounds.

GROUNDS OF APPEAL

5          Insofar as I am able to discern what the grounds of appeal say, put at best for the appellant, they say this:-

(a)          The Commissioner at first instance erred in failing to find that there was ostensible bias established so that she was required to disqualify herself.

(b)          The Commissioner erred in failing to find that there was evidence that she had predetermined the matter.

(c)          The Commissioner failed to find that there was evidence of this fact in that there was evidence of telephone calls and communications between the Commissioner and various members of staff on various dates between September 2001 and 2003 and there was evidence that the Commissioner had predetermined the matter.

(d)          The Commissioner erred in not accepting the evidence of the appellant as applicant at first instance.

6          Grounds 3 and 7 read as follows (see pages 4-5 (AB)):-

“3. There was a definite detailed apology from Natasha Firth, Associate of Commissioner Scott’s when apologising to the Appellant and it should not be seen as not misconstrued or misinterpreted.  It is deliberately making the whole process for the Applicant terrible and making her even more at fault on top of her application, which is bad enough to be summary dismissed.

7. The Appellant has been confronted with the transcript not being worded properly. Terrible errors in the transcript to look as if the Appellant does not know what she had said. Transcript has many words changed from what has been said - many omissions - a sentence not there that was stated in the hearing with no audible response put at the time when said. Terrible background noise on tape — need to check all of the tapes as seen many errors not matching with transcript.”

7          There follow other particulars (see pages 5-6 (AB)):-

“Particulars used for evidence - Appeal Book and submissions

1. Letters of 30 November 2003, 21 December 2003 and paragraph 5 of the attachment to the letter of 26 December 2003

2. Any documents that were available for the hearing on the 09.01.04

3. Transcript

4. Case law - if able to pick any applicable for my Appeal

5. Case law - the learned President and Commissioners who are on the Appeal Panel - knowledge of previous past cases in regards to formal reallocation requests relating to bias.”

8          Request for adjournment - There are particulars of a request for adjournment of the proceedings at first instance, but that request was not pressed upon appeal.

9          Certain other particulars are alleged (see pages 7-8 (AB)):-

“Public Interest

The state of mental health for Health Service workers and their families if inappropriately handled in this way. Let alone making it an unsafe workplace because of all health service workers not speaking against the hospital or the Commission is unfair for the workers asked to be like this and worse for the Appellant’s matter only seen against themselves.  It makes it a strong unfair permanent blame on one person who will only be very angry and upset for the future job prospects it would influence.

It was seen as being handled in a covert, unfair and more than unreasonable manner at a hearing by more than well knowledgeable group of government employees. Stating no knowledge of the Commission or the Commissioner who looks after the Health Service. This was well seen in the hearing as it being this and the Appellant who only knew of the Commissioner and where the Commissioner was from by the Union and the Health Service. In the public interest, the request for the Appeal to be upheld should be granted.

Remedy - Appeal upheld

Application for unfair dismissal to be allocated to another Commissioner for determination. Alternatively, reinstatement into a permanent placement in CMSU which, was supposed to have been arranged prior to her summary dismissal.  Compensation if applicable.”

10       I would observe that the grounds of appeal contain a great deal of evidence, some of which was not before the Commissioner at first instance, and, insofar as that was the case, s49(4) of the Act forbids the Commission considering it.

FINDING

11       This appeal was an appeal against a “finding” as that word is defined in s7 of the Act.  That is because, as defined, “finding” means a decision, determination or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter.  All it does is determine whether the Commissioner should continue to hear the matter or not.  This appeal does not lie, by virtue of s49(2a) of the Act, unless, in the opinion of the Full Bench, the matter is of such importance that in the public interest an appeal should lie (see Alderson v St Columba-Kingswood College (2003) 83 WAIG 215 (FB), Burswood Resort (Management) v ALHMWU (2003) 83 WAIG 3556 (FB), Hamersley Iron Pty Ltd v AMWSU (1989) 69 WAIG 1024, Mt Newman Mining Co Pty Ltd v AWU (1986) 66 WAIG 1925, and RRIA v AMWSU (1989) 69 WAIG 1873).

BACKGROUND

12       By an application filed on 16 March 2003, the appellant alleged that she had been dismissed from her employment by the respondent as a relief medical secretary (see page 11 of (AB)), and that her dismissal was harsh, oppressive or unfair (see s29(1)(b)(i) of the Act).  That dismissal is alleged to have occurred on 19 March 2003.  The appellant sought relief in the Commission by application No PSAC 18 of 2003.  The Hospital Salaried Officer’s Association of Western Australia (hereinafter referred to as “the HSOA”) applied for a s44 conference in relation to the appellant’s dismissal (application No 488 of 2003).

13       The HSOA advised the appellant that they would not take application No PSAC 18 of 2003 to hearing, on or about 5 August 2003.  At about the same time, the HSOA advised that it no longer acted as the appellant’s agent in relation to application No 488 of 2003.  The application that the Commissioner disqualify herself came on for hearing before the Commission on 9 January 2004.  The appellant appeared for herself and Ms Drew and Mr Jesson appeared for the respondent.

14       There were before the Commissioner three letters dated respectively 30 November 2003, 21 December 2003 and 26 December 2003 which contained the allegations of ostensible bias against the Commissioner (see pages 85-87 (AB)).

15       The factual matters which supported the application are mainly allegations that the Commissioner took part in the dismissal process of the appellant, and because of telephone communications with management and staff of the respondent, and allegations of what she had said in a conference, that the Commissioner had predetermined the case and should disqualify herself.

16       At the hearing, the appellant called 11 witnesses and the respondent called four.  The witnesses called by the appellant were herself, Richard Andrew Barlow, an employee of the respondent, Christopher David Panizza of the HSOA, Clare Thomas of the HSOA, Gary Thomas Bucknall, Glenda Joy Carson, manager of employment services for the respondent, Audrey Elizabeth Enright, medical secretary, Corinne Drew, the acting manager of area industrial relations for the respondent, Latha Sivapalan, medical secretary, Natasha Elise Firth, associate to the Commissioner, and Lynda Brown, medical secretary with the respondent.  For the respondent, there were called Mitchell Sydney Jesson, manager of health information management services for the respondent, Ronald Edward Gabelish, senior human resources officer for the respondent, Brigit Button, senior human resources officer for the respondent, and Sandra Bachman, secretarial co-ordinator for the respondent.  Not one witness gave evidence that the Commissioner behaved in the way in which the appellant alleged that she had behaved ((ie) that the Commissioner made or received any telephone calls in which the appellant and her dismissal was discussed).

17       The Commissioner noted for the record the following:-

(a)          That the Commissioner had no knowledge of the appellant, her employment by the respondent or any other matter associated with her before the Commissioner convened the conferences under s44 of the Act to deal with the applications filed both by her and by the HSOA on her behalf.

(b)          In relation to the allegation about telephone calls, the Commissioner observed that she had not telephoned nor did she as a matter of practice phone staff of organisations concerning their employees.  In September 2001, moreover, she observed there was nothing before her and she knew nothing of the appellant.  As to the allegations that she had predetermined the appellant’s claim, the Commissioner found, on the evidence, that the appellant had misheard, misunderstood or misconstrued the advice which she had received from her union representatives at the HSOA, or her advisers.  The Commissioner went on to find that it was their misunderstood advice which appeared to constitute the basis of the allegations of bias.  The only person who gave evidence of the alleged predetermination of the application by the Commissioner was the appellant.  Her evidence, the Commissioner found, was hearsay or speculative.  The other witnesses gave evidence of their own knowledge or experience.  The Commissioner therefore rejected the appellant’s evidence where it conflicted with that of the other 14 witnesses.  She therefore found that the allegations had been demonstrated to have no substance.  The Commissioner went on therefore to dismiss the application.

APPLICATION TO ADDUCE NEW OR FRESH EVIDENCE

18       On 29 March 2004, the appellant made application to the Full Bench for orders for discovery for production of documents and for leave to adduce new evidence, the application having been filed on 22 March 2004.

19       The request for leave to adduce new evidence was contained in a letter dated 22 March 2004, to the respondent’s industrial relations officer, Ms Corinne Drew, and to Deputy Registrar MacTiernan of this Commission.  So far as is discernible from the attachment to that letter which constitutes the actual request for leave, the appellant essentially sought to adduce evidence from Ms Audrey Enright, outpatients secretary for the respondent, that the Registrar of this Commission had told Ms Enright that she should not speak of telephone calls from the Commissioner to Ms Enright and “everyone”.  It was the appellant who alleged that Ms Enright had told her this.  The appellant said that she did not remember that this occurred until 27 February 2004.

DISCOVERY AND PRODUCTION OF DOCUMENTS

20       As to the documents of which she sought discovery, these consisted of all telephone records, if possible, including ingoing and outgoing telephone calls and mobile telephone records going back to May 2001:-

(a)          Of the Commissioner.

(b)          Of Ms Debbie Dunstan, the chambers liaison officer, of Commissioner Scott.

(c)          Of the Commissioner’s associate.

(d)          Of the Registrar, Mr John Spurling, and

(e)          “Any information that the Commission knows of that may show an unfair and unnecessary involvement with the appellant (emails, complaints etc).

21       The application, of course, is directed to the respondent and not to the Commission, the Commissioner, or any other person.

ISSUES AND CONCLUSIONS

New Evidence

22       S49(4) of the Act is restrictive of new evidence being adduced or new matters raised on an appeal.  S49(4) reads as follows:-

“(4) An appeal under this section — 

(a) shall be heard and determined on the evidence and matters raised in the proceedings before the Commission; and

(b) shall, if brought by a person referred to in subsection (3)(b), be dismissed unless, on the hearing of the appeal, that person obtains leave of the Full Bench,

and, for the purpose of paragraph (a), “proceedings” includes any proceedings arising under section 35(3).”

23       The Full Bench has determined these matters in FCU v George Moss Ltd (1990) 70 WAIG 3040 (FB) and more recently CFMEU v Hanssen Pty Ltd (2004) 84 WAIG 694 (FB).

24       Those principles are:-

(a)          That fresh evidence which could by reasonable diligence have been obtained and/or adduced at the hearing at first instance, is not admissible.

(b)          That, had the fresh evidence been adduced at the hearing, a different result would have been achieved.

(c)          That the evidence must be accounted to be credible.

25       In this case, too, no evidence was sought to be put before the Full Bench by affidavit, or at least by written statement.

26       It is also to be noted that the appellant called Ms Audrey Elizabeth Enright at first instance and did not put these matters to her.  Ms Enright said in evidence that she did not remember any call from Commissioner Scott for two and a half years before January 2004.  Ms Enright also said that she had no memory of telling the appellant that she remembered these telephone calls and had to make a witness statement about it.  She said that she simply did not remember.  She also said that she knew no one in the work area who was receiving calls from the Commissioner.  She did not remember Ms Lynda Brown coming in one morning and saying who was on the line.

27       Both the appellant and Ms Enright gave evidence at the hearing.  The evidence now sought to be adduced clearly existed at the time of the hearing and could have been adduced through either or both of these witnesses.  The evidence was not only procurable by reasonable diligence, it was adducible there and then at the hearing at first instance.  If it exists, and there was no affidavit or statement to support its existence, it was not new or fresh evidence.  Further, the appellant wants to give evidence that Ms Enright told her that Mr Spurling rang but told her not to talk about telephone calls from the Commissioner.  That would be double hearsay and even in this Commission, unreliable and inadmissible on that basis.  Even if the evidence were not in existence at first instance, if it existed at all, that evidence was also not new evidence and was adducible at first instance.  Further, there is no suggestion that it could change the result.

28       There is no evidence sought to be adduced as fresh evidence which might be at all regarded as credible or likely to have changed the result of the hearing at first instance.

29       Indeed, it is not clear that Ms Enright would at all give that evidence.  There is nothing in the evidence that could rightly be said to be credible or which should be given any weight.  I agreed to dismiss that application for those reasons.

ISSUES AND CONCLUSIONS - APPEAL

Findings in Relation to Credibility - Principles

30       In this decision findings of fact were made which, in part, depended on the reliability of the appellant’s evidence, the Commissioner at first instance having seen and heard her in the witness box.  The Commissioner also saw and heard the other witnesses in the witness box.

31       It follows that the principle applicable is that expressed in Devries and Another v Australian National Railways Commission and Another [1992-1993] 177 CLR 472 per Brennan, Gaudron and McHugh JJ.  Thus, a finding of fact by a trial judge based on the credibility of a witness is not to be set aside because an appellate court thinks that the probabilities of the case are against, even strongly against, that finding.

32       If the finding depends to any substantial degree on the credibility of the witness or witnesses, the finding must stand unless it can be shown that the Judge has failed to use or has palpably misused her/his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.  Of course, following Fox v Percy (2003) 197 ALR 201at 208-210 (HC) per Gleeson CJ, Gummow and Kirby JJ, it has been made clear again that an appeal court if, having made proper allowances for the advantages of the trial Judge, it concludes that an error has been shown, is authorised and obliged to discharge its appellate duties in accordance with the statute.  That is the duty of this Full Bench on this appeal.

Discovery and Production of Documents

33       There is a request for provision of Ms Lynda Brown’s finishing date at the hospital which will be notified to the appellant, counsel for the respondent told us, on the hearing of the appeal, even though the appellant does not concede that an order for discovery, inspection or production ought to be made.

34       In any event, the telephone records could not be produced before the Commission, it was submitted.  The appellant seeks the production of documents which, if it is agreed, could not be brought before the Commission on appeal because they are relevant only to new evidence which cannot now be adduced.  There is no basis upon which the appellant could use or rely on those documents before the Full Bench on the appeal.  Further, the appellant cannot compel the production, inspection or discovery of Commission documents by seeking an order directed to the respondent, since the documents are not in the respondent’s custody, power or possession.

35       Further, I would wish to be persuaded that the Commission could make an order directed to itself in proceedings to which it was not a party.  Of course, the Commission could never be a party.

36       In any event, because of the sheer breadth of the orders sought, as was submitted for the respondent, the application for discovery and production of documents is a “fishing expedition”.  It should, therefore, in my opinion, be clearly refused on that basis.  Such an application, in any event, is a matter which should have been dealt with at first instance and there is no satisfactory explanation why it should not have been.

37       There is nothing, in any event, in the description of the documents to suggest that they would assist in any way relevant to the appeal.  The appellant’s real grounds of making the application are that this material will assist her in exposing an alleged conspiracy.

38       Of course, it is not at all clear what the telephone records will reveal, nor is the appellant able to say.  The broad assertion by the appellant does not at all justify such orders being made.  These orders may not be made, in any event, because they are implicitly excluded by the terms of s49(4) of the Act which does not permit a rehearing of the matter except on the evidence and matters before the Commissioner at first instance and new evidence if it is adduced.  Discovery and production of documents is a matter for the proceedings at first instance.  It will be rare, if such can occur at all, for discovery, inspection and/or production of documents to be ordered on appeal.  That ground of appeal had no merit at all.

Bias

39       Part of the basis of the application by and the submissions at first instance was that the appellant alleged that the Commissioner was engaged,  and the Commissioner had been involved before the appellant’s alleged dismissal, in facilitating or instigating that dismissal.  Further, the appellant at first instance alleged that the Commissioner was biased and had predetermined the matter and had colluded with employees of the respondent in the course of this predetermination of the matter.

40       In short, the Commissioner was alleged to be engaged in a conspiracy with the respondent to bring the proceedings to an unfavourable result for the appellant.

41       The decision of the Commissioner was not a discretionary decision.  The Commissioner was required to make a finding of fact.

42       The appellant was required to establish that a reasonable observer might apprehend that the Commissioner might not or would not resolve the issues with a fair and unprejudiced mind.  The test is not subjective.  It is objective.  It certainly does not depend on what the person who alleges bias may subjectively believe or understand (see Stammers Supermarkets and Others v SDEA (1991) 71 WAIG 2031 (FB) and see also the Coal Miners’ Industrial Union of Workers of WA v Western Collieries Ltd (1995) 75 WAIG 2492 (FB) per Sharkey P, Coleman CC and Scott C).  The person who seeks that a Commission member disqualify her/himself must establish that such a basis exists in fact and as a fact (see Stammers Supermarkets and Others v SDEA (FB) (op cit) at page 2036 - 2038).  The opinion of any person on that question is inadmissible.

43       The test does take account of the fact that an unprejudiced and impartial mind is not necessarily one which has not thought about the issues in dispute or formed any preliminary views or inclinations of mind or conclusions about those issues (see Vakuta v Kelly [1989] 167 CLR 568 at 576 per Dawson J).  In assessing what the hypothetical reaction of a fair minded observer would be, the Commissioner was required to attribute to her or him knowledge of the actual circumstances of the case (see Laws v Australian Broadcasting Tribunal [1991] 170 CLR 70 at page 87).  In this case, the appellant was clearly required to establish that the reasonable apprehension would be that the Commissioner’s mind was so prejudiced in favour of a conclusion already reached, that it would not be altered irrespective of the arguments made and of any evidence which would be made or adduced.  It is, of course, trite to observe that a Judge or Commissioner should not stand aside whenever she/he is requested to do so (see Laws v Australian Broadcasting Tribunal (op cit) at page 100 and see, for example, Re Polites and Another; Ex parte The Hoyts Corporation Pty Ltd and Others [1991] 173 CLR 78 and Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 66 ALJR 583 and also, among other Full Bench decisions on such a point, Coal Miners’ Industrial Union of Workers of WA v Western Collieries Ltd (FB) (op cit) and see also Carter v Drake and Others (1992) 72 WAIG 736 at 737-739).

44       The question is not, generally speaking, one that should be the subject of factual contest by evidence or counter-evidence before the Commissioner or another Commissioner (see Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 (CA) at page 436 per Mahoney JA and see Bainton v Rajski (1992) 29 NSWLR 539 (CA) per Mahoney JA at pages 541-545, as well as Limbo v Little (1989) 98 FLR 421).

45       In matters involving superior court Judges the approach which has been adopted is that the question of bias is to be determined by the Judge himself or herself and if a decision is wrong then the error is to be corrected on appeal (see Australian National Industries Ltd v Spedley Securities Ltd (in liq) (CA) (op cit) per Mahoney JA at page 436).  It is only if any order is made which is susceptible to appeal that the court may consider the question of bias in conjunction with that appeal or summons for leave to appeal.  An appealable interlocutory order may, however, provide an early opportunity to deal with the question of bias (see Bainton v Rajski (CA) (op cit) and Australian National Industries Ltd v Spedley Securities Ltd (in liq) (CA) (op cit) and also Gas and Fuel Corporation Superannuation Fund and Others v Saunders and Another (1994) 123 ALR 323 (FC) per Gummow and Heerey JJ, Davies J concurring at pages 324-325).  I will turn to the approach which I think should be adopted by the Commission later in these reasons.

Facts at First Instance

46       At first instance, the appellant relied on a number of alleged facts:-

(a)          That in September 2001, Mr Ronald Gabelish, the respondent’s human resources officer, said to Mr Barlow that he was going to telephone Commissioner Scott.  That was, of course, 19 months before the appellant was dismissed or before the application at first instance was made.

(b)          That in the same month the Commissioner telephoned a number of the respondent’s employees, namely Ms Sandra Bachman, secretarial co-ordinator, Ms Lynda Brown, Ms Audrey Enright, Ms Cheryl Campbell and Ms Latha Sivapalan, all medical secretaries, and Mr Mitchell Jesson, manager of health information management services.

(c)          That on 5 March 2003, Commissioner Scott spoke on the telephone to Mr Mitchell Jesson and Ms Brigit Button, the respondent’s senior human resources officer.

(d)          That at a meeting on 2 July 2003, after a conciliation conference in the Commission at which Mr Christopher Panizza, assistant secretary of the HSOA was not present, Mr Panizza informed the appellant that there would be a decision against her if the matter went to hearing, and that the outcome had been predetermined by the Commissioner.

(e)          That, later that day, in a telephone call, Mr Panizza informed the appellant that Commissioner Scott had said that she would find the appellant to be “insolent” if the matter went to a hearing.

(f)           That there was an apology by Ms Natasha Elise Firth, the Commissioner’s associate, for the alleged predetermination.

The Alleged Barlow/Gabelish Conversation

47       Mr Gabelish’s evidence was that he did not have any conversation with Mr Barlow of the kind alleged by the appellant, that he did not at any time discuss Commissioner Scott or the Industrial Commission with Mr Barlow, and that he did not at any time contact Commissioner Scott.  Mr Barlow’s evidence was, similarly, that he had no recollection of any conversation with Mr Gabelish of the kind alleged, that he had no recollection of any reference to Commissioner Scott on the relevant day, and that his notes in relation to the meeting did not refer in any way to a discussion about a reference to Commissioner Scott.  They were not shaken in their evidence.  There was therefore the appellant’s own hearsay evidence that these conversations occurred, and the Commissioner did not accept that evidence.  The Commissioner was entitled not to accept that any such conversation had occurred on consideration of the whole of the evidence, and further to find that it gave rise to no objective facts which could be considered relevant to a consideration of whether there was a reasonable apprehension of bias or prejudgement.

The Alleged September 2001 Telephone Calls

48       As to the alleged telephone calls from Commissioner Scott to members of the respondent’s staff referred to above, the evidence of those witnesses, Ms Bachman, Ms Enright, Ms Brown, Mr Jesson and Ms Sivapalan, was quite clear, that they had never spoken to Commissioner Scott and/or had not heard of her, at least until shortly before the hearing, and/or had no recollection of receiving any telephone calls from her.  Ms Campbell was not called to give evidence.  Ms Glenda Joy Carson, manager of employment services for the respondent, gave evidence that she had no knowledge of the Commissioner contacting Mr Jesson, Ms Bachman, Mr Gabelish, Ms Button, or any of the central medical or clerical staff.  Further, she said that she had no knowledge of any staff contacting Commissioner Scott or being contacted by Commissioner Scott.  It was therefore clear that the allegations the appellant made had no foundation in any evidence except her own hearsay evidence of conversations alleged to have taken place between these employees and a person on the other end of the phone line whom she assumed was Commissioner Scott.  The Commissioner quite rightly did not accept her evidence as against the other evidence and was entitled, even on the basis of the evidence sought to be adduced by the appellant, in finding that there were no objective facts relevant to consideration of whether there was a reasonable apprehension of bias or prejudgement.  Further, she was also able and entitled to have regard to her own knowledge that she had not, in fact, had any contact with the alleged recipients of the telephone calls as alleged by the appellant (see Australian National Industries Ltd v Spedley Securities Ltd (in liq) (CA) (op cit) at page 436 per Mahoney JA).

The Alleged 5 March Telephone Calls

49      The appellant’s allegation, put at its highest, was that during breaks at a meeting at Sir Charles Gairdner Hospital on 5 March 2003, the respondent’s representatives, Mr Jesson and Ms Button, spoke to Commissioner Scott by telephone.  She admitted that she had no knowledge of whom they spoke to.  Both witnesses gave clear and unequivocal evidence that they had not had any telephone calls with Commissioner Scott that day, and, indeed, did not have any mobile telephones to use on 5 March 2003.

50      It was therefore open to the Commissioner to find that there was no evidence of that allegation and no evidence on which any objective fact could be found which could be considered relevant to a consideration of whether there was a reasonable apprehension of bias or prejudgement.  She was also entitled, as she was throughout, to rely on her own knowledge that she had not in fact had any contact with Mr Jesson and Ms Button as alleged by the appellant.

Alleged Apology by Associate

51      I deal now with the evidence relating to ground 3.  By that the appellant alleged that the Commissioner’s associate, Ms Natasha Firth, had apologised to her for the Commissioner’s predetermination of the matter.  The appellant gave evidence in somewhat vague terms of this alleged apology.  Ms Firth, on the other hand, gave unshaken and definite evidence that there was no predetermination and that she did not apologise to the appellant (see page 59 of the transcript at first instance (hereinafter referred to as “TFI”)).

52      It was open therefore to the Commissioner to find, and find correctly, that there was no apology for any predetermination, and that there was no predetermination.

The Alleged Predetermination – Mr Panizza’s Alleged Discussion of 2 July 2003

53      Mr Panizza gave evidence that he was not at the conciliation conference of 2 July 2003, so that if he said what he was alleged to have said, it would have to have been what other HSOA officers present at the conference or someone else told him.  There is no evidence that anyone told him anything along the lines suggested by the appellant.  In any event, that evidence, had it existed, was hearsay upon hearsay and very unreliable.  In any event, Mr Panizza also gave evidence in which he denied ever holding or offering an opinion concerning any alleged predetermination as alleged by the appellant.  Further, his evidence was that he had did not say in any telephone call to the appellant that Commissioner Scott intended to find that the appellant might be “insolent”.

54      Ms Clare Thomas of the HSOA also gave evidence when called by the appellant that at the conference in the Commission on 2 July 2003 she recalled the Commissioner mentioning nothing about predetermining the matter.  Both she and Mr Panizza denied having any opinion that the Commissioner had predetermined the matter.  They said that they would have advised their client that an appropriate application should be made in the event that they had that view.

55      As to the alleged telephone conversation, it was therefore open to the Commissioner to find, and she found correctly, that there was no evidence that any such incident occurred, that nothing to that effect was said by the Commissioner, particularly having regard to her own knowledge of the matter and that no fact could be found based on those allegations which was at all relevant to any finding of bias.

Findings of Fact

56      I would also add that the finding that the appellant’s evidence should not be accepted was not a finding which, according to the principles laid down in Fox v Percy (HC) (op cit) and Devries and Another v Australian National Railways Commission and Another (op cit), should be disturbed.  Not one of the 14 witnesses called gave evidence which supported her allegations.  Eleven of those were the appellant’s own witnesses.  The evidence in chief of Ms Drew (see page 54 (TFI)) is a strong example.  The appellant’s case was therefore flawed because of that evidence alone because it constituted part of her own case.  Her own evidence was, as the Commissioner found, hearsay and speculative whilst the witnesses’ evidence was of their own knowledge.  There was no evidence of any of the allegations, except the evidence of the appellant which was hearsay, sometimes double hearsay and strongly conjectural.  All of the evidence adduced by the appellant and all of the evidence adduced by the respondent, even, negatived or failed to support her evidence.  Indeed, not one of her own witnesses supported her case.  There was no reason therefore why it could have been found that her case was established.  The Commissioner herself, having denied the allegations, found on the evidence that there were no grounds for a finding of bias and dismissed the application that she disqualify herself.  She was therefore, on a fair reading of the evidence, clearly entitled to accept the evidence of all of the witnesses and reject that of the appellant.

57      I would also mention that, notwithstanding her allegations, it was significantly the appellant’s own evidence that she really did not know what the outcome of the application would be (see pages 28-29 (TFI)).

58      The Commissioner was therefore correct in finding that the appellant’s allegations had no substance.

Conclusion

59      In this case there was nothing put to the Commissioner on which she might properly find as a fact, that she was biased.  In other words, a reasonable observer, on what was before the Commissioner, would not possibly apprehend that the Commissioner might or would not resolve the issues with a fair and unprejudiced mind.  In the case of prejudgement, which was part of the allegations in this case, the ground for disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that the officer will decide the case adversely to one party (see Re JRL; Ex parte CJL [1986] 161 CLR 342) (see also Re Polites and Another; Ex parte The Hoyts Corporation Pty Ltd and Others (op cit) and Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (op cit) a 583-584).  In this case, as I have said, no such reasonable apprehension arose, not even on the evidence adduced which is an advantage which the appellant should not perhaps have been permitted to enjoy.

60      Insofar as what was alleged is an allegation of misconduct or impropriety, then that is evidence of actual bias (see Re JRL; Ex parte CJL (op cit) at pages 356-357 per Mason J).  Whether actual or ostensible there was nothing before the Commission which might correctly lead to any finding that the Commissioner was biased.

61      There was therefore no evidence which might lead to any conclusion of actual bias or any predetermination of the matter.  There was no misconduct on the part of the Commissioner.  The allegation of bias, on a fair reading of all of the material, seems to have been entirely misconceived.  The grounds which so allege are not made out and fail.

Alleged Errors in Transcript at First Instance

62      In support of ground 7, the appellant listed a number of errors which she said appeared in the transcript at first instance.  I am not certain why this was done.  First, none of the “errors” were said or demonstrated to be of any consequence to the decision at first instance.  Second, they could not in any way have had any effect on the Commissioner’s decision and the reasons therefore because the reasons were given ex tempore at the end of the hearing and were given therefore without benefit of transcript.  That ground has no merit therefor.

Further Matters

63      I would also observe as follows.

64      First, it will be obvious that it has not been demonstrated that the Commissioner at first instance has misused her advantage in seeing the witnesses in making the findings which she made.  Indeed, it was clearly open to her to find as she did, on a fair reading of the evidence, and she was correct in so finding.

65      Second, there was no basis in fact upon which the Commissioner could make a finding that in the circumstances a party or a member of the public might entertain a reasonable apprehension that she might not bring an impartial and unprejudiced mind to the resolution of the question.  Indeed, in the end, that was not even the appellant’s evidence.

66      Third, it is doubtful on the authorities to which I have referred above, that an appeal against bias should be heard by this Full Bench before the proceedings at first instance have concluded.

67      Fourth, a party cannot question a member of the Commission about facts supporting any allegation of bias (see Limbo v Little (op cit) at pages 427-428).

68      Further, although it was not in question in these proceedings, having regard to the authorities referred to above, I would need to be persuaded that the Commission was required to hear conflicting evidence or any evidence to determine the matter of bias.  However, that was not argued in these proceedings.

Finding

69      The decision at first instance was a finding as that term is defined in s7 of the Act.  “Finding” is defined in s7 of the Act as follows:

““finding” means a decision, determination or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate.”

70      By s49(2a) of the Act:-

“An appeal does not lie under this section from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie.”

In other words, the appeal has no existence as a competent appeal until the Full Bench forms the opinion that the matter of the appeal is of sufficient or so much importance that in the public interest an appeal should lie.

71      In this case, the matter of the appeal is not and has not, in my opinion, been established to be of such importance that in the public interest an appeal should lie because:-

(a)          There is no demonstrated merit in the appeal at all.

(b)          The Full Bench should not generally determine an appeal against a finding of bias before the matter is heard and determined at first instance, unless there is a strong and obvious case of bias, and unless, having regard to all of the relevant factors, the matter should be heard before the hearing at first instance is entirely completed.

(c)          The Full Bench should not and does not readily entertain an interlocutory decision on appeal.

(d)          It is in the interests of the parties and the public as much as possible to allow this matter to be determined at first instance without the interruption of appeals on findings.

(e)          The principles dealing with bias have been well settled by the High Court and Full Benches in this Commission and no new matter of law to be decided has been raised.

FINALLY

72      It goes without saying that the Full Bench is required to deal with this appeal on what was before the Commissioner at first instance which is contained in the transcript and appeal books.  I cannot and have not taken account of submissions and statements by the appellant which go beyond that.

73      In my opinion, it has not been established that the appeal should lie and I would so find, for those reasons.  I would dismiss the appeal for the reasons which I have expressed.  If I were wrong in that, then no ground of appeal has been established for the reasons expressed above on the merits.  I would therefore dismiss the appeal for all of those reasons.

CHIEF COMMISSIONER W S COLEMAN:

74      I have had the benefit of reading the Reasons for Decision of His Honour, the President.  I agree and have nothing to add.

SENIOR COMMISSIONER A R BEECH:

75      I have had the advantage of reading the draft reasons for decision of His Honour, the President.  I agree and have nothing to add.

THE PRESIDENT:

76      For those reasons, the appeal is dismissed.

      Order accordingly