Heap, in the matter of an Application for Writs of Prohibition, Certiorari and Mandamus against the Australian Industrial Relations Commission [2003] FCAFC 36

Heap, in the matter of an Application for Writs of Prohibition, Certiorari and Mandamus against the Australian Industrial Relations Commission [2003] FCAFC 36

The application was dismissed because the Full Bench was not shown to have erred in concluding that the Senior Deputy President's private late-stage conference with the Bank's representatives, and the strong comments made about the Bank's case and wider implications, gave rise to a reasonable apprehension of bias. The Bank's participation in the conference did not waive its right to object to what was said. In any event, if the Full Bench had erred while applying the correct apprehended bias test, the error would likely have been within jurisdiction rather than jurisdictional.

Jurisdiction
Australia
Judgment Date
07 March 2003
Procedural Posture
Application for Writs of Prohibition, Certiorari and Mandamus / Final Hearing After Remitter From the High Court of Australia
Outcome
Application dismissed; question of costs reserved.
Legal Topics
['termination of Employment' 'australian Industrial Relations Commission Arbitration' 'apprehended Bias' 'disqualification of Decision Maker' 'jurisdictional Error' 'conciliation During Arbitration' 'waiver']
['industrial Law' 'administrative Law' 'natural Justice'] ['termination of Employment' 'australian Industrial Relations Commission Arbitration' 'apprehended Bias' 'disqualification of Decision Maker' 'jurisdictional Error' 'conciliation During Arbitration' 'waiver']

Case Brief

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Procedural Posture

Application for Writs of Prohibition, Certiorari and Mandamus / Final Hearing After Remitter From the High Court of Australia

Legal Issues

  1. 1 ['Whether the Full Bench erred in holding that the Senior Deputy President should have disqualified herself for apprehended bias.' "Whether comments made by the Senior Deputy President in a private conference with the Bank's representatives at a late stage of the arbitration gave rise to a reasonable apprehension of bias." 'Whether further conciliation by the member conducting the arbitration was proper in the circumstances.' "Whether the Bank's agreement to participate in the private conference waived its right to object to what was said in the conference." 'Whether any error by the Full Bench would amount to jurisdictional error.']

Ratio Decidendi

The application was dismissed because the Full Bench was not shown to have erred in concluding that the Senior Deputy President's private late-stage conference with the Bank's representatives, and the strong comments made about the Bank's case and wider implications, gave rise to a reasonable apprehension of bias. The Bank's participation in the conference did not waive its right to object to what was said. In any event, if the Full Bench had erred while applying the correct apprehended bias test, the error would likely have been within jurisdiction rather than jurisdictional.

Court Disposition

Application dismissed; question of costs reserved.

Orders

  • ['The application be dismissed.' 'The question of costs be reserved.' 'If the second respondent wishes to apply for costs, it file and serve written submissions on the question of costs on or before 21 March 2003.' 'If the second respondent does not file written submissions in accordance with paragraph 3, there be...