Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 31

Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 31

The 1986 advice given by Mr. Polites to Hoyts was given in different and limited circumstances, largely concerned negotiating options and uncontentious available proceedings, and did not make the quality of his advice a live issue in the Commission proceedings. The formation of Delarene and Rampton in 1988 might be relevant before the Commission, but the 1986 advice did not recommend that course as wise, reasonable or appropriate in the circumstances later arising. There was therefore no foundation for a reasonable apprehension that Mr. Deputy President Polites would not decide the live issues impartially, and mandamus should issue requiring him to continue. The costs application was...

Jurisdiction
Australia
Procedural Posture
Application for Writ of Mandamus / Return of Order Nisi and Costs Determination
Outcome
Order nisi for mandamus made absolute; application for costs refused.
Legal Topics
['mandamus' 'reasonable Apprehension of Bias' 'disqualification of Tribunal Member' 'australian Industrial Relations Commission' 'costs in Industrial Relations Proceedings' 's. 75(v) Jurisdiction']
['administrative Law' 'industrial Relations' 'constitutional Law' 'civil Procedure'] ['mandamus' 'reasonable Apprehension of Bias' 'disqualification of Tribunal Member' 'australian Industrial Relations Commission' 'costs in Industrial Relations Proceedings' 's. 75(v) Jurisdiction']

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Procedural Posture

Application for Writ of Mandamus / Return of Order Nisi and Costs Determination

Legal Issues

  1. 1 ['Whether Mr. Deputy President Polites should be disqualified from continuing to sit on a Full Bench of the Australian Industrial Relations Commission because he had given legal advice to Hoyts in 1986.' 'Whether there was a reasonable apprehension that Mr. Deputy President Polites might not bring an impartial and unprejudiced mind to the issues before the Commission.' 'Whether mandamus should issue directing Mr. Deputy President Polites to hear and determine the proceedings as a member of the Full Bench.' 'Whether s. 347(1) of the Industrial Relations Act 1988 Cth precluded an order for costs in the High Court proceeding.']

Ratio Decidendi

The 1986 advice given by Mr. Polites to Hoyts was given in different and limited circumstances, largely concerned negotiating options and uncontentious available proceedings, and did not make the quality of his advice a live issue in the Commission proceedings. The formation of Delarene and Rampton in 1988 might be relevant before the Commission, but the 1986 advice did not recommend that course as wise, reasonable or appropriate in the circumstances later arising. There was therefore no foundation for a reasonable apprehension that Mr. Deputy President Polites would not decide the live issues impartially, and mandamus should issue requiring him to continue. The costs application was...

Court Disposition

Order nisi for mandamus made absolute; application for costs refused.

Orders

  • ['Order nisi for a writ of mandamus directed to Mr. Deputy President Polites directing him to hear and determine, as a member of a Full Bench, the proceedings in the Australian Industrial Relations Commission in Matters C Nos. 32728, 33189, 33341, 60381 of 1988 and 30084, 20037, 20364, 30172 and 35776 of 1989 made...